PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            15 August 2002
	DOCKET NUMBER:   AR2002072910

	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	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. Jose A. Martinez		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 the records of her deceased spouse, a former service member (FSM), be corrected to show he was eligible for a non-regular retirement, that he applied for retired pay, and that he elected to participate in the Survivor Benefit Plan (SBP).

3.  The applicant states that when the FSM first thought he was eligible for retired pay, he was told he needed two more years of qualifying service.  His request for retention in an active status was approved and he completed those two years in 1966.  When he applied for retired pay in 1971, he was told his records were lost or destroyed and he was not granted retirement.  

4.  The FSM’s military records are available and show that he was born on          6 December 1911.  After having had prior active duty, he entered Reserve service in 1946.  He married the applicant on 26 February 1950.

5.  By letter dated 1 September 1966, the FSM was notified that he had requested retention and was retained in an active status in November 1964 in order to complete 20 years of qualifying service and that he completed the required service on 30 June 1966.  Apparently, he was never issued a notification of eligibility to receive retired pay at age 60 (a 20-year letter).  

6.  The FSM apparently was denied retired pay upon reaching age 60 in December 1971.  He died on 23 May 1998.

7.  In the processing of this case, an advisory opinion was obtained from the Transition and Separations Branch, U. S. Army Reserve Personnel Command.  That office reviewed the FSM’s records and determined that he attained 20 qualifying years of service on 30 June 1966 and was eligible for retired pay on his 60th birthday.  That office opined that the FSM was led to believe he was not eligible for retired pay and recommended full relief be granted the applicant.

8.  A copy of the advisory opinion was provided to the applicant for comment.  She concurred with the advisory opinion.

9.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. It declared a       12-month Open Season for those members who retired prior to enactment of the law.

10.  Title 10, U. S. Code, section 12731(a) states that a person is entitled, upon application, to retired pay if the person is at least 60 years of age, has performed at least 20 years of qualifying service, and the last eight years of qualifying service have been performed while a member of a Reserve Component.

CONCLUSIONS:

1.  The evidence of record shows the FSM was eligible to receive retired pay in 1971 but it appears he was not issued a 20-year letter and was not granted retired pay due to a Government error.  He honorably served in the Army for over 20 years and earned his retired pay.  His spouse, the applicant, helped him earn his retired pay.

2.  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 showing:

     a.  that the FSM was issued a 20-year letter on 1 July 1966; and

     b.  that the FSM applied for retired pay on 1 October 1971, naming the applicant as his beneficiary for unpaid retired pay, and returned the application to the appropriate office in a timely manner where it was processed in a timely manner to be effective upon his reaching age 60 on 6 December 1971.

2.  That the records related to this case be further corrected by showing that the FSM elected to participate in the SBP on 1 December 1972 for spouse coverage, full base amount.

3.  That the applicant be advised that the Defense Finance and Accounting Service will be instructed to collect any SBP costs due.  

4.  That the applicant be paid the SBP annuity effective 23 May 1998, the date of the FSM’s death.

BOARD VOTE:  

__JNS __  __INW __  __JAM __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

					        ___       John N. Slone      ___
		        CHAIRPERSON

INDEX

CASE ID	AR2002072910	
SUFFIX		
RECON		
DATE BOARDED	2002/08/15	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	136.02	
2.	137.02	
3.		
4.		
5.		
6.