PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           6 August 2002                   
	DOCKET NUMBER:   AR2001064621

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

	Mr. Carl W. S. Chun		Director	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Ms. Paula Mokulis		Member	
	Mr. Donald P. Hupman		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that her husband’s records be corrected to show that his last year of service was qualifying for retired pay.

3.  The applicant states that her husband, the former service member (FSM), had sufficient retirement points for a qualifying year of service at the time of his death, but he had not completed his retirement year.  She adds that he died while jogging in preparation for his Army Physical Fitness Test (APFT).

4.  In support of her request the applicant submits a memorandum from the Commanding General (CG), 416th Engineer Command.  In that memorandum the CG requests a waiver to allow the FSM’s records to be corrected to show that he had 20 qualifying years of service for retired pay purposes.  The CG attests to the FSM’s leadership qualities, his devotion to his troops, and his physical fitness.

5.  The applicant’s military records show that he was commissioned as a second lieutenant, Army Reserve, on 20 December 1974, which established his Retirement Year Ending (RYE) date as 19 December.  He entered active duty on 15 March 1975, was awarded the Area of Concentration of combat engineer, was promoted to first lieutenant, and was honorably released from active duty on 14 March 1979.  He remained assigned to the USAR Control Group until his assignment to a USAR troop program unit on 1 August 1987.  While he was assigned to the USAR Control Group, he did not earn any retirement points, either from participation in the USAR or by taking correspondence courses.  As such, these seven years were not qualifying for retired pay.

6.  He remained assigned to USAR units from the date of his assignment in August 1987, earning a qualifying retirement year for every year, and was promoted to lieutenant colonel.  

7.  On 30 June 2001 the FSM died of cardiac arrhythmia.

8.  An ARPC Form 249-2-E, Chronological Statement of Retirement Points, shows that the FSM has been credited with 19 qualifying years of service at the time of his death, fourteen years of which were served consecutively prior to his death.  In RYE 19 December 2000 the FSM earned 133 retirement points.  In RYE 19 December 1986 the FSM earned 16 retirement points.

9.  Title l0, United States Code, chapter 67, section 12731 authorizes retired pay benefits to members and former members of the Reserve components who have completed a minimum of 20 years qualifying service and attained the age of 60.  A qualifying year is determined to be a year in which a minimum of 50 retirement points has been credited.

10.  In the processing of this case, the staff of the Board found it necessary to contact the applicant for clarification of her request.  The applicant stated that it was her intent to request that the FSM be credited with 20 qualifying years of service for retired pay so she would be eligible to receive an annuity under the Survivor Benefit Plan (SBP).

11.  Title 10 USC, Section 1448(f), states that the Secretary concerned shall pay an annuity under this subchapter to the surviving spouse of a person who is eligible to receive a reserve-component annuity and who dies prior to receiving the “20-year letter” packet, or is within 90 days from the date of receipt of the 
“20-year letter” packet but has not made an election.

CONCLUSIONS:

1.  The FSM had 14 consecutive years of qualifying service preceding his death, and had already earned sufficient retirement points in the RYE during which he died for that year to be considered qualifying had he not died prior to the completion of his RYE. 

2.  It is reasonable to presume that the FSM had all intentions to remain assigned to the USAR, at least until the end of his RYE, and would have done so if it weren’t for his untimely death while training for the APFT.

3.  There is no basis in law or regulation to grant the applicant’s request; to show that the year the FSM died was qualifying for retired pay.  However, the FSM earned sufficient retirement points during his RYE 19 December 2000 to allow for the transfer of 34 retirement points from that year to his RYE 19 December 1986, a year in which he maintained USAR membership throughout the RYE, but failed to earn sufficient retirement points to qualify the year for retired pay.  The addition of 34 retirement points from RYE 2000 to RYE 1986 would result in RYE 1986 becoming qualifying for retired pay, and will establish the FSM’s RYE 19 December 2000 as the date he was eligible to be issued a “20 year letter” certifying his eligibility for retired pay.  

4.  Since the FSM was never issued a “20-year letter,” his records must also be corrected to show that his surviving spouse was eligible for SBP under the automatic coverage clause of Title 10 USC, Section 1448(f).

5.  In view of the foregoing, the FSM’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:
	a.  transferring 34 retirement points from RYE 19 December 2000 to RYE 19 December 1986;

	b.  showing that RYE 19 December 1986 was qualifying for retired pay; 

	c.  issuing in the FSM’s name a 20-year letter certifying his eligibility for retired pay; and

	d.  showing that the FSM’s surviving spouse was eligible for SBP benefits under the automatic coverage provisions of Title 10 USC, Section 1448(f).

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

___lls___  ____pm__  ___dph__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_________Luther L. Santiful_____________
		        CHAIRPERSON

INDEX

CASE ID	AR2001064621	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020806	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.