PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           18 April 2002                            
	DOCKET NUMBER:   AR2001062721

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn 		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. Ronald E. Blakely 		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, in effect, that she be granted entitlement to annuity benefits from the Reserve Component-Survivor Benefit Program (RC-SBP) based upon her deceased husband’s, the former service member (FSM), years of service in the Army National Guard (ARNG) and Army Reserve (USAR).   

3.  The applicant states that although the FSM is credited with no military status between October 1964 and August 1976 she has an honorable discharge certificate dated 30 September 1967.  The Social Security Administration (SSA) has stated, in effect, that her husband paid social security taxes on military wages between 1965 and 1975.  In support of the application she submits numerous documents including the above-mentioned 1967 honorable discharge certificate; an email message from the SSA; and a 10 September 1981 DD Form 368 (Request for Clearance) by the Army Recruiting Station, St. Charles, Missouri to the FSM’s old ARNG unit.  

4.  Counsel contends that the FSM and his surviving spouse have both been unjustly deprived of retirement benefits.  Counsel states, in effect, that it is illogical for an individual to have re-affiliated and then to have stopped participating without insuring that he was eligible for Reserve Retired pay at age 60.

5.  The FSM’s military records show that he joined the ARNG in April 1947 and served until 30 June 1958 when his participation became somewhat sporadic.  His 12 August 1976 enlistment contract shows that his most recent enlistment had been in the ARNG from 5 October 1961 to 4 October 1964.  A subsequent Chronological Record of Military Service (ARPC Form 249-3), dated 29 July 1994, indicates only one qualifying year between the retirement year ending (RYE) 30 June 1958 and the 12 August 1976 enlistment.  Following that enlistment the applicant had 5 fully qualifying years, the last one being the RYE 11 August 1981.

6.  A 10 March 1980 memorandum from the FSM’s unit commander to the state adjutant general requested that the FSM be issued a 20-year letter of eligibility for retired pay at age 60.  A 25 June 1981 letter from the National Guard Bureau informed the state adjutant general that the FSM had only 14 years, 2 months and 24 days of qualifying service.  That information was forwarded to the unit commander in a 7 July 1981 memorandum.  

7.  On 17 September 1981 the FSM enlisted in a USAR troop program unit.  Despite an annual enlisted evaluation report for the period from October 1982 to 
September 1983 that recommended promotion with his peers and assigned an average promotion point score of 116 points (of a possible 125) and evidence of 
completion of 22 days annual training, the FSM was credited with only 47 total points.  This was a non-qualifying year for which he received no retirement credit. The FSM then had two qualifying years. In the RYE in 1984 he earned 83 points and in the RYE in 1985 he earned 53 points. 

8.  Effective 23 August 1985 the FSM was transferred to the USAR Control Group (Reinforcement).  He apparently was not again an active participant before his discharge from the USAR effective 16 September 1987.  The FSM reached age 60 on 16 September 1988.

9.  On 23 June 1994 the FSM visited the Army Reserve Personnel Center, in person, in order to apply for retired pay.  He completed a DA Form 4240 (Data for Payment of Retired Army Personnel), and designated his spouse, the applicant, as the SBP beneficiary in the full amount. 

10.  A 10 November 1994 letter informed the FSM that an audit of his available records showed that he was not eligible for retired pay at age 60. The attached ARPC Form 249-3 showed a total of 28 years, 4 months and 28 days of longevity for pay computation purposes; and 19 years, 2 months and 24 days of qualifying service for retired pay at age 60.  He was advised that he could appeal to this Board.

11.  The FSM died 1 July 2001.  A 24 August 2001 letter advised the applicant that the FSM had not qualified for retired pay at age sixty and notified her that her only recourse was to apply to this Board.

12.  The email from the SSA states “We have researched the wages posted to your husband’s record per your request to Congressman Dave Weldon.  Military wages were taxed by Social Security on your husband’s service from 1965-1975. He paid the maximum FICA [Federal Insurance Contributions Act] taxes on his earnings for the same period.  Because his earnings were at the maximum level, proof of his military service was not required.”

13.  The 10 September 1981 DA Form 368 lists his prior inactive service as 17 years, 3 months and 22 days and his current enlistment at “ACTIVE” 5 years, 1 month and 1 day.

14.  Army Regulation 135-180, at paragraph 1-4, states that retired pay is pay granted to soldiers and former Reserve component soldiers under Title 10, United States Code, Section 1331, after completion of 20 or more years of 
qualifying service [a qualifying year requires at least 50 points] and upon attaining age 60.  This pay is based on the highest grade satisfactorily held at any time during an individual’s entire period of service, other than an inactive part of a Reserve component.  

15.  Public Law 92-425, the Survivor Benefit Plan (SBP), enacted 21 September 1972, as amended, provides that military members on active duty may elect to have their retired pay reduced to provide for an annuity after death to surviving dependents (wife or children).  Further, the spouse is required to be informed of the decision made by the service member as to whether he or she chose to participate or not, and the level of participation.  The election made by the member is normally irrevocable, except in special circumstances.  This benefit was extended to members of the Reserve components (the RC-SBP) on 
1 October 1978 by Public Law 95-397.   

16.  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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

CONCLUSIONS:

1.  Having become exhausted by a system demanding documentary information that he was unable to provide, the FSM should not be faulted for failing to apply to this Board for relief based upon equity.  This Board concludes that it is in the interest of justice to excuse the failure to timely file and to consider the case on the merits.  

2.  Notwithstanding the information and documentation from the applicant and the SSA, there is no convincing evidence that the applicant had any military status between October 1964 and August 1976.  The email from the SSA appears to indicate that military wages were subject to FICA, not that the FSM necessarily had any.  Aside from the documents submitted by the applicant, there is no substantiating evidence that the FSM had an active status during that period.  Clearly the 10 September 1981 DD Form 368 was in error in that the applicant was not on active duty at that time.  Finally, concluding that the FSM had an active military status from October 1964 and August 1976 directly contradicts his 12 August 1976 enlistment contract.

3.  The FSM was affiliated with the Reserve Components for over 28 years yet the evidence of record indicates that he failed to accumulate 20 qualifying years for retired pay at age 60.  Nevertheless, once he learned, in mid 1981, that he was not yet eligible he re-affiliated and was an active participant for a period that he undoubtedly believed to be sufficient.  

4.  Although the ARPC Form 249-3 indicates that he was 7 months and 6 days short of 20 qualifying years, closer inspection of the RYE 11 August 1983 shows that, in fact, he was only  three points short and that shortage was, at least in part, the accidental result of his anniversary year.  Denying retirement benefits based upon such a minor discrepancy in an obviously imperfect system is unjust. Three retirement points should be redistributed from the RYE 11 August 1984 to RYE 11 August 1993 making that a qualifying year with 50 points.  

5.  As a matter of equity the FSM should be granted retroactive retirement pay and the applicant should be granted SBP based upon the FSM’s 23 June 1994 application and selection of SBP options.

6.  In view of the foregoing findings and conclusions, correcting the FSM’s records as recommended below records will rectify an injustice.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

a.  showing that the individual concerned earned 50 retirement points in RYE 11 August 1983 and 80 points in RYE ending 11 August 1984;

b.  showing that he was issued a 20 year letter;

c.  showing that the 16 September 1987 discharge was voided and that he was transferred to the Retired Reserve;

d.  showing that on 23 June 1994 he applied for retired pay and elected RC-SBP coverage for his spouse in the full amount;

e.  paying his estate the back pay due less the unpaid RC-SBP premiums; and

f.  paying the applicant the past and future RC-SBP benefits due.

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

BOARD VOTE:  

_FNE____  __BJE__  __REB__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_     _Fred N. Eichorn____
		        CHAIRPERSON

INDEX

CASE ID	AR2001062721	
SUFFIX		
RECON		
DATE BOARDED	20020418	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT ,	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.