MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           19 July 2001                   
	DOCKET NUMBER:   AR2001054805

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Gail J. Wire		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that the records of her deceased spouse, a former service member (FSM), be corrected to show he applied for retired pay and that his retired pay be paid to his estate.

APPLICANT STATES:  The applicant apparently defers to counsel.

COUNSEL CONTENDS:  That the applicant is not requesting to collect monies under the Survivor Benefit Plan (SBP) for which the FSM never applied.  As executrix of the FSM’s estate, she requests to collect those military retired pay benefits that he would have received from the date of eligibility to the date of his death.  Because his military records were not accurate, the FSM decided to correct his military records before making application for his military retired pay benefits.  He continued this on and off until his death in December 1999.  He earned his military retired pay.  His estate and widow should not be barred from collecting said benefits.

EVIDENCE OF RECORD:  The FSM's military records show:

He was born on 16 June 1935.  After having had prior active duty, he entered the U. S. Army Reserve on 23 April 1960.  His notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 26 June 1980.  He turned age 60 on         16 June 1995.  He died on 6 December 1999 without ever had applied for retired pay.  

There is no evidence of record to show that there was a problem with the FSM’s retirement points or other records or that he ever contacted the Army Reserve Personnel Command about such a problem.

Title 10, U. S. Code, section 12731(a) states that a person who meets certain eligibility criteria is entitled, upon application, to retired pay.

The Department of Defense Financial Management Regulation (DODFMR), paragraph 300101 states that entitlement to retired pay terminates on the date of the retiree’s death.  The DODFMR defines “retired pay” as the gross entitlement for a member based on conditions of the retirement law, pay grade, years of service for basic pay, years of service for percentage multiplier, percentage of disability, if appropriate, and date of retirement.

In the processing of this case, an advisory opinion was obtained from the Retirements and Annuities Branch, Army Reserve Personnel Command.  That office noted that the FSM had been provided the necessary forms and instructions for applying for retired pay one year in advance of his 60th birthday yet he never made application for his retired pay.

A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  She did not respond within the given time frame.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The law provides that retired pay is paid, upon application, to the member.  Entitlement to retired pay terminates upon the member’s death.  The FSM had an opportunity to apply for retired pay and dispute the accuracy of his records afterwards.  There is no evidence of record to show that there was an inaccuracy in his records or that he ever contacted the Army Reserve Personnel Command about such a problem and the applicant provides no such evidence.  The Board will not consider granting the relief requested without such evidence.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__mdm___  __le____  __gjw___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2001054805	
SUFFIX		
RECON		
DATE BOARDED	20010719	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	128.14	
2.		
3.		
4.		
5.		
6.