IN THE CASE OF: BOARD DATE: 29 October 2009 DOCKET NUMBER: AR20090005457 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests the records of her deceased husband, a former service member (FSM), be corrected to show that he qualified for non-regular retirement and that he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP). 2. The applicant states her husband was born on 15 January 1950 and served in the active Army from 6 October 1974 through 7 July 1991, a period of 16 years, 7 months, and 12 days. He joined the Georgia Army National Guard (GAARNG) on 24 January 1995 and was an active participant until 1 January 1999, when he was separated for medical reasons and transferred to the U.S. Army Reserve (USAR) Control Group (Retired). He died on 14 September 1999 from a glioblastoma. He was 49 years old and had 19 years, 9 months, and 2 days of creditable service for retired pay, of which 3 years were in the GAARNG. 3. The applicant thought that on the anniversary of her husband’s 60th birthday she would begin receiving RCSBP. In 2008, she began making inquiries as to what she had to do to receive RCSBP. At that time, she was informed her husband had not qualified for non-regular retirement. 4. The applicant provides: a. a copy of the FSM’s death certificate; b. a copy of the FSM’s GAARNG State Medical Review Board (SMRB) results; c. a copy of Orders 205-020, GAARNG, dated 1 December 1998, discharging the FSM and transferring him to the USAR Control Group (Retired); d. a copy of the FSM’s National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service); e. a copy of the FSM’s request to be retired; f. a copy of the FSM’s unit’s request to transfer the FSM to the USAR Control Group (Retired); and g. a copy of the FSM’s NGB Form 23B (Army National Guard Retirement Points History Statement (RPAS)) showing 16 years, 9 months, and 2 days of creditable active service and 3 years of creditable ARNG service, for a total of 19 years, 9 months, and 2 days of creditable service for retired pay. CONSIDERATION OF EVIDENCE: 1. The FSM enlisted in the USAR Delayed Entry Program (DEP) on 6 October 1974. On 25 November 1974, he was discharged from the DEP and enlisted in the Regular Army (RA) on 26 November 1974. He served continuously until his honorable discharge on 7 July 1991 with 16 years, 9 months, and 2 days of creditable active Federal service. 2. The FSM had a 42-month break in service from 8 July 1991 through 23 January 1995. On 24 January 1995, he joined the GAARNG and served honorably and faithfully until being diagnosed with a glioblastoma in 1998. He underwent surgery, radiation and chemotherapy, and he was unable to perform his duties as a National Guardsman. On 1 January 1999, he was discharged and transferred to the USAR Control Group (Retired). 3. On 8 October 1998, a memorandum, subject: Medical Fitness for Retention, was sent to the FSM by the GAARNG, Headquarters, Oglethorpe Armory, Ellenwood, GA. This memorandum notified the FSM, in pertinent part, that he was “eligible for early reserve retirement eligibility for disabled members of the Army National Guard (GAARNG). If you desire to be considered for this retirement eligibility you will need to coordinate with your unit to verify your enclosed RPAS statement and submit a DA Form 4187 requesting transfer to the Retired Reserve.” On 13 November 1998, the applicant submitted a DA Form 4187 (Personnel Action) forwarding his current RPAS statement and requesting retirement and transfer to the Retired Reserve. There is no record of any action being taken by the GAARNG to establish the FSM’s eligibility for retired pay. It appears that the only action taken was to transfer him from the GAARNG to the USAR Control Group (Retired). 4. The applicant queried the GAARNG in 2008 concerning what she had to do to obtain RCSBP. In an 18 August 2008 letter to the applicant, the Retirement Services manager, Directorate of Workforce Development, State of Georgia, stated the FSM may have attained 20 years of service with the GAARNG and, if he elected a survivor benefit package, the applicant would be entitled to a benefit at a rate of 55 percent of the FSM’s retirement benefit. The applicant was asked to complete various forms and to submit the FSM’s retirement orders, 20-year letter, and DD Form 1883 (Survivor Benefit Plan Election Certificate). 5. In the processing of this case, on 10 August 2009 an advisory opinion was obtained from the Chief, Personnel Division, NGB, which recommends the FSM be granted early retirement eligibility under Title 10, U.S. Code, section 12731b. The opinion provides: a. The FSM enlisted in the RA on 26 November 1974 and served until 7 July 1991, at which time he received an honorable discharge. At the time of his discharge from the RA, he had served 16 years, 7 [sic] months, and 12 [sic] days. The FSM enlisted in the GAARNG on 24 January 1995 and served satisfactorily until being diagnosed with a malignant brain tumor and undergoing surgery on 14 May 1998. The FSM was not able to return to duty following the surgery and he was eventually determined to be medically unfit to perform his duties by a State Medical Review Board (SMRB). He was transferred to the USAR Control Group (Retired) on 1 January 1999 as evidenced by State Order Number 205-020, dated 1 December 1998, and NGB Form 22, dated 1 January 1999. At the time of his discharge from the GAARNG he had accumulated 3 years, 11 months, and 8 days of retirement credit and a total of 19 years, 9 months, and 2 days as listed on his NGB Form 23B, dated 17 March 2009. b. On 8 October 1998, the FSM was presented with the SMRB findings and he was informed of the determination that he was medically unfit to perform his duties as evidenced by a memorandum from the GAARNG Military Personnel Officer. Of note is the statement in paragraph 3 that states "Based on current information on record you are eligible for early reserve retirement eligibility for disabled members of the Army National Guard (GAARNG)." c. The FSM died on 14 September 1999 at the age of 49. Had he not developed the disqualifying medical condition, he could have served for 11 more years before reaching mandatory retirement for age. d. The FSM met the criteria in Title 10, U.S. Code, section 12731b which states, in pertinent part, "In the case of a member of the Selected Reserve of a reserve component who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for purposes of section 12731 of this title, determine to treat the member as having met the service requirements of subsection (a)(2) of that section and provide the member with the notification required by subsection (d) of that section if the member has completed at least 15, and less than 20, years of service computed under section 12732 of this title." e. The language in Title 10, U.S. Code, section 12731b allows that the Soldier will be considered to have met the 20-year service requirement; however, the language does not address the criteria in Title 10, U.S. Code, section 12731(a)(3) which states in pertinent part, “in the case of a person who completed the service requirements of paragraph (2) before April 25, 2005, performed the last six years of qualifying service while a member of any category named in section 12732 (a)(1) of this title." f. The intent of Title 10, U.S. Code, section 1273b was to ensure that Soldiers do not lose their retirement eligibility if they are found to be medically unfit for continued service and have served at least 15 years and less than 20 years. Although not mentioned specifically, the logical assumption would be that the requirement for 6 years of Reserve service would also be considered to have been satisfied in the FSM’s particular situation to keep within the intent of section 12731b. The FSM displayed a clear intent to continue serving satisfactorily in the GAARNG until he met all retirement criteria had he not developed a disqualifying medical condition. At the time of his discharge, he was 22 days short of completing 4 years of the 6 year criteria in section 12731(a)(3). 6. The applicant was provided a copy of the NGB advisory opinion for information and to allow her the opportunity to submit comments or a rebuttal. On 23 August 2009, she concurred with the recommendations of the advisory opinion. 7. Title 10, U.S. Code, section 12731 – Age and service requirements – provides a person is entitled, upon application, to retired pay if the person (1) is at least 60 years of age; (2) has performed at least 20 years of service; (3) in the case of a person who completed the service requirements before April 25, 2005, performed the last 6 years of qualifying service while a member of any Reserve component; and (4) is not entitled, under any other provision of law, to retired pay from an armed force. 8. Title 10, U.S. Code, section 12731a – Temporary special retirement qualification authority – modified section 12731 to provide for retirement with at least 15 years of service. It states the Secretary concerned may determine to treat a member of the Selected Reserve of a Reserve component of the armed force under the jurisdiction of that Secretary as having met the length of service requirements for non-regular retired pay and provide the member with the required notification if the member: (1) as of 1 October 1991, has completed at least 15, and less than 20, years of service; or (2) after the period beginning on 23 October 1992 and ending on 31 December 2001 completes 15 years of service and, in the case of a person who completed the service requirements before 25 April 25 2005, performed the last six years of qualifying service while a member of the National Guard. Upon the request of the member, the Secretary shall transfer the member to the Retired Reserve. 9. Title 10, U.S. Code, section 12731b – Special rule for members with physical disabilities not incurred in line of duty – states in the case of a member of the Selected Reserve of a Reserve component who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for purposes of section 12731 of this title, determine to treat the member as having met the length of service requirements of that section and provide the member with the required notification if the member has completed at least 15, and less than 20, years of service computed under section 12732 of this title. The provisions of section 12731b did not become law until 5 October 1999. The FSM was transferred to the USAR Control Group (Retired) on 1 January 1999. 10. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. 11. Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60. Three options are available: (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. DISCUSSION AND CONCLUSIONS: 1. The applicant requests RCSBP based on her deceased husband’s service in the GAARNG. Her husband was diagnosed with brain cancer in 1998, became incapacitated to perform his military duties, and was subsequently discharged. 2. The FSM had a total of 19 years, 9 months, and 2 days of creditable service for non-regular retired pay; however, he had only 3 years of creditable Reserve component service [the NGB advisory opinion states 3 years, 11 months, and 9 days – from 24 January 1995 through 1 January 1999 – however, only 3 years were actually creditable]. 3. It appears the GAARNG apprised the FSM of his retirement options in late 1998 and, in accordance with instructions from the GAARNG, the FSM made application for retirement and transfer to the Retired Reserve using DA Form 4187, as instructed. Unfortunately, the GAARNG only transferred the applicant to the Retired Reserve; they did not actually process him for early retirement under the provisions of Title 10, U.S. Code, section 12731b, and did not issue him a 15-year letter or provide him the opportunity to complete DD Form 1883, electing RCSBP for the applicant. The most likely reason for this was that he did not perform the last 6 years of his service in the National Guard. 4. Title 10, U.S. Code, section 12731a provides that the Secretary of the Army may treat a Reservist with more than 15, but less than 20 years of creditable service towards a Reserve retirement, as having completed the requirements for a Reserve retirement in the case of a Soldier who during the time in question completed his/her last 6 years of service in a Reserve component. But for his terminal illness, the FSM surely would have completed at least 3 more years in the GAARNG which would have allowed him to meet the requirements stipulated under section 12731a. 5. In the interest of equity and justice, it would be appropriate to correct the FSM’s records by converting the appropriate number of years of Regular Army service to Reserve component service in order to give him 6 years of qualifying service in the GAARNG prior to his transfer to the USAR Control Group (Retired). Furthermore, it would be appropriate to show that he elected to participate in the RCSBP for an immediate full spouse annuity, full base amount, and to pay this annuity to the applicant. BOARD VOTE: ___X____ ___X____ ___X___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that the state Army National Guard records and the Department of the Army records of the individual concerned be corrected, as appropriate, by: a. converting the appropriate number of years of Regular Army service to Reserve component service so as to give the FSM credit for 6 years in the GAARNG immediately prior to his transfer to the USAR Control Group (Retired); b. showing that the FSM was issued a 15-year letter authorizing him early retirement eligibility as a disabled member of the GAARNG under the provisions of Title 10, U.S. Code, section 12731a at the time he was transferred to the Retired Reserve on 1 January 1999 and that at that time he elected to participate in the RCSBP for spouse coverage, full base amount, option C; and c. paying to the applicant the appropriate RCSBP annuity effective from 15 September 1999, the day after the death of the FSM. __________X____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20090005457 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090005457 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1