IN THE CASE OF: BOARD DATE: 11 February 2016 DOCKET NUMBER: AR20150007261 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 (widow) requests, on behalf of her deceased spouse, a former service member (FSM), retroactive retired from 22 September 2011 to 24 November 2013. 2. The applicant states: a. She requested from the Defense Finance and Accounting Service (DFAS) the FSM’s Reserve retirement back pay and allowances from 22 September 2011 to 24 November 2012, but the request was denied due to DFAS having no documentation indicating the FSM was ever placed on the Reserve Retired List. b. Prior to the FSM's severe illness, he became eligible for a State of Michigan military retirement at age 55, and being of sound mind at that time, he applied for that retired pay. c. The FSM was discharged from the Michigan Army National Guard (MIARNG) on 13 March 1990. He was eligible to be transferred to the Retired Reserve; however, he was discharged instead and was never sent an application for retired pay at age 59 by the U.S. Army Human Resources Command (HRC). d. Due to his illness and declining health and due to not receiving an application for retired pay, the FSM did not remember to apply for his retired pay prior to his death. e. She did not know the FSM was eligible for retired pay until after his death on 24 November 2013. f. The FSM was very ill for many years. He suffered from many severe cardiac issues, as well as a painful degenerative bone disease. He was not able to work the last 10 years of his life. Had the FSM known of his retirement benefits and other benefits available to him, it would have prevented them from filing bankruptcy 5 months prior to his death. 3. The applicant provides the following documents: * A self-authored letter * United States Bankruptcy Court, Eastern District of Michigan letter * Pontiac Trail specialty and Diagnostic Medical Center letter dated 19 February 2014 * State of Michigan marriage license * Department of the Army and the Air Force Michigan National Guard Joint Force Headquarters memorandum for record (MFR) dated 10 April 2015 * Notification of Eligibility (NOE) for Retired Pay at Age 60 dated 13 April 1990 * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) * DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate) * Orders 044-054, State of Michigan, Department of Military Affairs, dated 3 March 1990 * ARNG Current Annual Statement * DD Form 214 (Armed Forces of the United Stated Report of Transfer or Discharge) * County of Oakland, State of Michigan, Certificate of Death for the FSM CONSIDERATION OF EVIDENCE: 1. The FSM was born on 22 September 1951. On 9 February 1970, the applicant enlisted in the MIARNG. 2. On 10 February 1990, the FSM and the applicant were married. 3. On 13 March 1990, the FSM was honorably discharged due to being medically unfit for retention. His NGB Form 22 shows he completed 20 years, 1 month and 5 days of net service. 4. On 13 April 1990, the FSM received his NOE for retired pay at age 60. The letter did not specify that he would need to apply for retired pay. At this time, the FSM also had the opportunity to enroll in the Reserve Component (RC) SBP program. 5. On 25 April 1990, the FSM elected to enroll in the RCSBP under Option C (Immediate Coverage) for spouse and child coverage based on full base pay. 6. On 22 September 2011, upon reaching age 60, the FSM became eligible to receive Reserve retired pay. There is no evidence indicating he applied for Reserve retired pay prior to or after reaching age 60. 7. On 24 November 2013, the FSM passed away. 8. The applicant submitted an MFR from the Michigan National Guard Joint Force Headquarters, dated 10 April 2015, stating that, due to the FSM’s serious illness and the error in his records which showed he was discharge vice placed on the Retired Reserve List, he was never sent an application for retired pay from HRC. The MFR states, in effect, that the FSM’s discharge order has been amended to retroactively place him in the Retired Reserve. Furthermore, DFAS informed the applicant that they would pay her an SBP annuity, but not the back retired pay from the date the FSM was eligible (22 September 2011 to the date of his death on 24 November 2013), since he never submitted a valid and timely election. 9. The applicant also submitted a letter from the Pontiac Trail Specialty and Diagnostic Medical Center which stated that the FSM was a patient there prior to his death. The FSM had many illnesses that contributed to his failing health. He, at times, required hospitalization several times a year and medications that affected him physically and mentally. This resulted in his long deteriorating health leaving him mentally and physically incapacitated over the last several years. 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 and has performed at least 20 years of qualifying service. 11. Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service) provides that upon a Soldier’s application for retired pay, a computation to determine the number of years of qualified service, years for percentage purposes, and years for basic pay purposes will be made. DISCUSSION AND CONCLUSIONS: 1. The applicant contends her late husband's record should be corrected to show he applied for retired pay effective 22 September 2011, the date he turned age 60. 2. The evidence of record shows the FSM served in the MIARNG and was erroneously discharged vice being transferred to the Reserve Retired List on 31 March 1990 after completing the required years of service for non-regular retirement. The Michigan National Guard has since corrected his record to show he was transferred to the Retired Reserve. 3. The FSM reached age 60 on 22 September 2011. The evidence supports the conclusion that he did not apply for retired pay due to the effects of his many illnesses and the effects of associated medications. The evidence shows he was fully eligible for retired pay on the date he reached age 60. 4. The FSM passed away on 24 November 2013. 5. DFAS has informed the applicant that they would pay her an SBP annuity; however, they would not pay her back retired pay on behalf of the FSM since he never submitted a request for retired pay. 6. In light of the available evidence, it would be appropriate to correct the FSM's record to show he submitted a timely application retired pay to be effective 22 September 2011, the day he turned age 60, and to pay to the FSM's estate any retired pay the FSM would have received up to the date of his death on 24 November 2013. 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 all Department of the Army records of the individual concerned be corrected by: a. correcting the FSM's record to show he submitted a timely application for retired pay and b. paying to the FSM's estate or other proper beneficiary, as applicable, any retired pay due as a result of this correction. _______ _ _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) AR20130017302 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007261 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1