MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           21 March 2002                  
	DOCKET NUMBER:   AR2001062926

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

	Mr. Carl W. S. Chun		Director	
	Mr. William W. Osborn		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Linda D. Simmons		Member	
	Mr. John T. Meixell		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  Reconsideration of her  previous application to correct her deceased husband’s, the former servicemember (FSM), military records by showing that he had applied for his retired pay at age 60.

APPLICANT STATES:  In a 30 December 2001 affidavit she states that the FSM was a perfectionist all his life.  He did not submit his application because he mistakenly believed that his Army Reserve (USAR) retirement point total had to be rectified first. From time to time, he would get out his files and work on the retirement points accounting, but he would become so frustrated with the problem that he would put it aside.  He never completed the task.  She is not seeking survivor benefits only the retired pay he should have received before his death.  She submits two other affidavits to show that the applicant believed that the points accounting had to be corrected first.

COUNSEL CONTENDS:  Counsel submits a 14 October 1994 Chronological Statement of Retirement Points (DA Form 249-2-E) and an unfinished (It ends with year ending 22 April 1984.) handwritten tabulation of the FSM’s retirement points.  Counsel contends that the documents show that there was a discrepancy and that this explains and justifies the FSM’s delay in applying. 

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records that were summarized in the decisional document prepared to reflect the Board's previous consideration of the case (AR2001054805) on 19 July 2001.

The submissions are new evidence that require Board consideration.

As noted in the original decisional document, the FSM served a combined total of 31 years.  He received a 20-year letter of eligibility for retired pay at age 60, dated 26 June 1980, retired on 22 April 1989 and reached age 60 on 16 June 1995.  He suffered a stroke on Thanksgiving Day 1999 and died 6 December 1999 without ever applying for retired pay. 

An affidavit from the applicant’s son, a local police captain and a First Sergeant in the Air Force Reserve, reports that he is well aware of the problems associated with retirement point accounting.  He had many conversations with his father about this subject.  His father, who was meticulous about everything he did, spent long hours of his own time preparing USAR paperwork.  Those who knew his father knew the importance he attached to doing the right thing.  He became very frustrated when something was done incorrectly and he could not get it corrected.  His father “spent many hours working on his retirement paperwork and became very frustrated because the Army had his years of service and retirement points incorrect.  He told me that when he completed his paperwork that the Army would pay him back pay from the day he was eligible.…”
A USAR chief warrant officer four (CWO4) states, in another affidavit, that he met the FSM in 1978 and that he had “known First Sergeant [the FSM] to complete even non-essential tasks, the things that did not need to be done, before declaring a job complete.”  Sometime prior to the FSM’s death, the CWO4 talked with the unit administrator about the problem with the FSM’s retirement points.  “…First Sergeant [the FSM] wanted the problem solved with his retirement points before it was acceptable to him to apply for his retirement benefits.…I know that the drive for perfection, which was [the FSM’s] personal trait, was motivating him to work on cleaning up his retirement points first, then applying for his retirement.  That is just the way [the FSM] was.”

A comparison of the 14 October 1994 DA Form 249-2-E and the FSM’s handwritten tabulations shows that the FSM was calculating 71 more retirement points for the period ending in 1984.  There is no available documentation to substantiate the FSM’s calculations. 

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  It provides that, if a request for reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence that was not in the record at the time of the Board’s prior consideration.  This includes but is not limited to any facts or arguments as to why relief should be granted.  The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than one year after the Board’s original consideration or after the Board has already reconsidered the case.  In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision.  If the staff finds such evidence, the case will be resubmitted to the Board.  If no such evidence is found, the application will be returned without action.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  Although the submitted evidence tends to show that the FSM was a perfectionist and that he delayed in applying for retired pay so that a discrepancy in his retirement points could be rectified, he had 6 years between the date of his retirement and reaching age 60 and over 10 years between retirement and the stroke to complete the process.

2.  The evidence that the applicant believed a discrepancy existed, the family’s sacrifices and loss, the FSM’s personality traits and the fact that the FSM, in fact, earned retired pay have all been carefully considered.  However, the law provides that receipt of Reserve retired pay is conditional upon application and that entitlement ends at death.  Regrettably, the Board concludes that no error occurred and that any injustice is solely the consequence of the FSM’s own volition. 

3.  The overall merits of the case, including the latest submissions and arguments, are insufficient as a basis for the Board to reverse its previous decision.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

_JNS ___  __LDS __  _JTM____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2001062929	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020321	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	237.00	
2.		
3.		
4.		
5.		
6.