IN THE CASE OF: BOARD DATE: 14 July 2016 DOCKET NUMBER: AR20150011948 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 14 July 2016 DOCKET NUMBER: AR20150011948 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ______________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. IN THE CASE OF: BOARD DATE: 14 July 2016 DOCKET NUMBER: AR20150011948 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, the widow of a deceased former service member (FSM), requests correction of the FSM's records to show he qualified for Reserve retirement at age 60, he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) and elected "spouse" coverage, and she is entitled to an annuity. 2. She states the her late husband received a letter from the U.S. Army Reserve Personnel Center (ARPERCEN) in March 1996 offering him the option to retire or be discharged. Her late husband elected retirement and he subsequently received retirement orders. In 2004, her late husband applied for retired pay, but was denied due to his ineligibility. She questions why ARPERCEN sent orders retiring the FSM if he only had 18 years of service and why was he not given the opportunity to reenlist. 3. She provides: * self-authored statement * FSM's DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge/Certificate of Release or Discharge from Active Duty) * FSM's Enlistment/Reenlistment Documents * marriage certificate * three Certificates of Training * Robins Federal Credit Union Statement of Account * Personal Data Sheet * death certificate * Orders C-04-614941, dated 11 April 1996 * ARPERCEN letters, dated 29 June 1987, 11 April 1995, 26 March 1996, and 18 November 2004 * DARP Form 249/AHRC Form 249-E (Chronological Statement of Retirement Points), dated 14 August 1992 and 27 February 2015 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The FSM was born on 1 May 1947. 3. On 18 December 1967, he enlisted in the Regular Army. 4. On 28 November 1969, he was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training). He was credited with completing 1 year, 11 months, and 11 days of active duty service. 5. On 1 December 1973, he was honorably discharged from the USAR Control Group (Standby Reserve). 6. On 14 September 1975, he enlisted in the USAR. 7. On 10 July 1991, his USAR unit administrator informed him of the results of Military Occupational Specialty (MOS)/Medical Retention Evaluation Board. He said the FSM had been found qualified for retention in the USAR; however, he was not qualified to retain his MOS of 76V (Materiel Storage and Handling Specialist). He further said the only option available to the FSM was to find a unit that had an MOS that allowed a physical profile rating of "113111" and transfer to that position, become trained in that MOS, and try to continue his USAR service, or transfer to the USAR Control Group. 8. On 14 March 1992, the USAR unit commander notified the FSM of his failure of the MOS 71L (Administrative Specialist) Course. He stated the FSM was enrolled in the course to provide him a means to continue in an active status in the unit after he was assigned a physical profile which precluded him from holding MOS 76V. MOS 71L was the only MOS in the unit that could be held with a physical profile rating of "3." Based on the FSM's inability to perform in his primary MOS and failure to complete training in an alternate MOS (71L), the commander directed the applicant's transfer to the USAR Individual Ready Reserve (IRR) effective 16 March 1992. 9. Headquarters, 81st USAR Command, Orders 053-023, dated 20 April 1992, reassigned the FSM to the IRR effective 16 March 1992. The reason shown is voluntary transfer. 10. The applicant provided the following documents in support of her application: a. A letter from ARPERCEN, dated 26 March 1996, states the FSM's expiration term of service in the U.S. Army expired on 7 April 1994. His records indicated he had accumulated a substantial number of years of service. Under Army regulations, the FSM had the option of selecting either transfer to the Retired Reserve or discharge. Regulations provide that when an enlisted Soldier is eligible for transfer to the Retired Reserve and fails to elect an option within the stipulated time, his or her discharge would be accomplished by administrative action. The FSM check the block indicating he elected transfer to the Retired Reserve. b. ARPERCEN Orders C-04-614941, dated 11 April 1996, released the FSM from the USAR Control Group (Reinforcement) and assigned him to the Retired Reserve effective 11 April 1996. The reason was cites as completion of 20 or more years of Reserve duty. c. A letter from the Chief, Transition and Separations Branch, ARPERCEN, dated 18 November 2004, responded to the FSM's application for retired pay. The representative stated that to be eligible for retired pay at age 60, a Reserve Soldier must have completed a minimum of 20 qualifying years of service, the last 8 years of which must have been in a Reserve Component (RC). Service in an inactive Reserve status, such as the Retired Reserve, is not creditable for retirement purposes. An audit of the FSM's military records shows he completed 18 years, 11 months, and 11 days of qualifying service for retirement. Therefore, the FSM was not eligible to receive retired pay. d. The FSM death certificated showing that he died on 7 August 2014. e. The FSM's Chronological Statement of Retirement Points, dated 27 February 2015, shows he was credited with 18 years, 11 months, and 11 days of qualifying service for a non-regular service retirement. Specifically, this statement shows he was credited with 1 year, 11 months, and 11 days for his active duty service from 18 December 1967 to 28 November 1969. It also shows he earned retirement points as follows during the retirement years beginning and ending: * 29 November 1969-28 November 1973 – 15 membership points each year for 4 years, for 0 years of qualifying service for retirement * 29 November 1973-17 December 1973 – 1 membership point for 0 years of qualifying service for retirement * 18 December 1973-13 September 1975 – break in service * 14 September 1975-13 September 1976 – 45 inactive duty points, 15 membership points, and 12 active duty points, for a total of 72 retirement points and 1 year of qualifying service for retirement * 13 September 1977 – 42 inactive duty points, 15 membership points, and 12 active duty points, for a total of 69 retirement points and 1 year of qualifying service for retirement * 13 September 1977 –42 inactive duty points, 15 membership points, and 12 active duty points, for a total of 69 retirement points and 1 year of qualifying service for retirement * 13 September 1978 – 48 inactive duty points, 15 membership points, and 12 active duty points, for a total of 72 retirement points and 1 year of qualifying service for retirement * 13 September 1979 – 52 inactive duty points, 15 membership points, and 14 active duty points, for a total of 74 retirement points and 1 year of qualifying service for retirement * 13 September 1980 – 48 inactive duty points, 15 membership points, and 14 active duty points, for a total of 74 retirement points and 1 year of qualifying service for retirement * 13 September 1981 – 48 inactive duty points, 15 membership points, and 14 active duty points, for a total of 74 retirement points and 1 year of qualifying service for retirement * 13 September 1982 – 48 inactive duty points, 15 membership points, and 14 active duty points, for a total of 74 retirement points and 1 year of qualifying service for retirement * 13 September 1983 – 48 inactive duty points, 15 membership points, and 15 active duty points, for a total of 75 retirement points and 1 year of qualifying service for retirement * 13 September 1984 – 48 inactive duty points, 15 membership points, and 14 active duty points, for a total of 74 retirement points and 1 year of qualifying service for retirement * 13 September 1985 – 61 inactive duty points, 15 membership points, and 19 active duty points, for a total of 79 retirement points and 1 year of qualifying service for retirement * 13 September 1986 – 38 inactive duty points, and 15 membership points, for a total of 53 retirement points and 1 year of qualifying service for retirement * 13 September 1987 – 50 inactive duty points, 15 membership points, and 26 active duty points, for a total of 86 retirement points and 1 year of qualifying service for retirement * 13 September 1988 – 50 inactive duty points, 15 membership points, and 15 active duty points, for a total of 75 retirement points and 1 year of qualifying service for retirement * 13 September 1989 – 45 inactive duty points and 15 membership points, for a total of 60 retirement points and 1 year of qualifying service for retirement * 13 September 1990 – 42 inactive duty points and 15 membership points, for a total of 57 retirement points and 1 year of qualifying service for retirement * 13 September 1991 – 36 inactive duty points, 15 membership points, and 41 active duty points, for a total of 92 retirement points and 1 year of qualifying service for retirement * 13 September 1992 – 26 inactive duty points, 15 membership points, and 15 active duty points, for a total of 56 retirement points and 1 year of qualifying service for retirement * 14 September 1992-13 September 1995 – 15 membership points each year for 3 years for 0 years of qualifying service for retirement * 11 April 1996 – 9 membership points for 0 years of qualifying service for retirement * 12 April 1996-17 November 2004 – 0 points and his status was listed as Retired 11. The FSM's records are void of a 20-year letter. His records are also void of any evidence and applicant has not provided any evidence showing the FSM completed any service that was not accounted for in his Chronological Statement of Retirement Points. REFERENCES: 1. Title 10, U.S. Code, sections 12731-12737, authorize retired pay for RC military service. To be eligible for retired pay under this law, a Reserve Soldier, upon attaining age 60, must have completed a minimum of 20 qualifying years. After 1 July 1949, a qualifying year is defined as a year in which at least 50 retirement points are earned. 2. Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service), in effect at the time, implements statutory authorities governing granting retired pay to Soldiers and former RC Soldiers. a. Paragraph 2-1 stated that to be eligible for retired pay an individual need not have a military status at the time of application, but must have attained age 60, completed a minimum of 20 years of qualifying service, and served the last 8 years of his qualifying service as an RC Soldier. b. Paragraph 2-8 describes qualifying service as service performed in an active status in an RC or in active Federal service. After 30 June 1949, a Reserve member must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service. When a person is in an active status for a period less than a full retirement year, a minimum number of retirement points are required to be earned in order to have that period credited as qualifying service. c. Paragraph 2-10 states that in determining the years for percentage purposes, credit of 1 day will be given for each point as follows: * 1 point for each day of active duty * 15 points for each year of membership in an active status in an RC * 1 point for each authorized participation in drills or periods of instruction which conform to the requirements prescribed by the Secretary of the Army * not more than 60 points per year, including membership points, will be credited for inactive duty training in any one retirement year d. Paragraph 3-2 explains that RCSBP allows RC Soldiers and former Soldiers who have received notification of their eligibility for retired pay at age 60 to provide survivor annuity for their dependents should the Soldier or former Soldier die before reaching age 60 and receipt of retired pay. Orders will be issued announcing the effective date eligible persons are entitled to retired pay. Chapter 3 describes the RCSBP. 3. Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers) states eligible Soldiers must request transfer if they: a. are entitled to receive retired pay from the U.S. Armed Forces because of prior military service; b. have completed a total of 20 years of active or inactive service in the U.S. Armed Forces; c. are medically disqualified for active duty resulting from a service-connected disability; d. were appointed based on the condition the Soldier immediately apply for transfer to the Retired Reserve; e. reached the age of 37 and completed a minimum of 8 years of qualifying Federal service; f. reached the age of 37, completed a minimum of 8 years of qualifying Federal service, and served at least 6 months of active duty in a time of war or national emergency; g. completed 10 or more years of active Federal commissioned service; or h. are medically disqualified, not as a result of own misconduct, for retention in an active status or entry on active duty, regardless of the total years of service completed. 4. Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who 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, and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. Once a member elects either option B or C in any category of coverage, that election is irrevocable. Option B and C participants do not make a new SBP election at age 60. They cannot cancel SBP participation or change options they had in RCSBP and RCSBP coverage automatically converts to SBP coverage upon retirement. DISCUSSION: 1. The applicant contends, in effect, that the FSM qualified for a 20-year Reserve retirement. She argues that the orders published by ARPERCEN substantiate this fact. 2. The evidence of record shows the FSM was found qualified for retention in the USAR; however, was not qualified to retain his primary MOS based on his permanent physical profile rating. He voluntarily transferred to the IRR on 16 March 1992 after subsequently failing to qualify in an MOS which was compatible with his permanent physical profile. At the time of his transfer, he was credited with 18 years, 11 months, and 11 days of qualifying service for retirement purposes. 3. The FSM's service in the IRR and Retired Reserve was not creditable for retirement purposes and his records are void of any service that was not previously accounted for on his Chronological Statements of Retirement Points. 4. Assignment to the Retired Reserve is voluntary. Army Regulation 140-10 provides that RC Soldiers may request transfer to the Retired Reserve if they are medically disqualified, not as a result of their own misconduct, for retention in an active status or entry on active duty, regardless of the total years of service completed. Assignment to the Retired Reserve does not automatically qualify an RC Soldier for retired pay at age 60. 5. To be eligible for retired pay based on non-regular service, an individual must have attained the age of 60, completed a minimum of 20 years of qualifying service, and served the last 6 years of his or her qualifying service as an RC Soldier. A qualifying year is defined as a year of service during which a Reservist earns at least 50 retirement points. 6. The FSM's records show he did not complete 20 years of qualifying service for entitlement to retired pay at age 60. He was not issued a 20-year letter. Since the FSM was not eligible for a 20-year Reserve retirement, the applicant is not eligible to receive an SBP annuity. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011948 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011948 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2