BOARD DATE: 19 November 2018 DOCKET NUMBER: AR20160006354 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. 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. DOCKET NUMBER: AR20160006354 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 19 November 2018 DOCKET NUMBER: AR20160006354 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, in effect, that the military records of her deceased spouse, a former service member (FSM), be corrected to show he applied for retired pay upon reaching age 60 and she be paid his retroactive retired pay and a Survivor Benefit Plan (SBP) annuity. 2. The applicant states the FSM had the understanding he needed 25 years of creditable service in order to qualify for military retirement through the reserve program; therefore, he never filed for his entitled compensation at age 60. He completed 20 qualifying years of service for retirement and transferred to the United States Army Reserve Control Group 4 years before the Reserve Component SBP was available. His address changed from the time he separated from the Army National Guard; therefore, he would not have received information about the SBP program nor would he have received the retirement application packet from the Army Human Resources Command (HRC). Not only did he not draw his retirement, he never had the opportunity to use the TRICARE healthcare system since 25 December 1996. 3. The applicant provides: * HRC letter * FSM's Death Certificate * Notification of Retired Pay Eligibility * separation orders * marriage certificate CONSIDERATION OF EVIDENCE: 1. The FSM was born on . 2. He was issued a notification of eligibility for retired pay at age 60 (his 20-year letter) on 6 May 1974. This letter notified him he had completed the required years of service to be eligible for retired pay at age 60 upon application. 3. On 13 July 1987, he was notified by U.S. Army Reserve Personnel Center, St. Louis, MO, he had completed the maximum amount of service which a member of the USAR may serve in an active status. His mandatory removal date was 26 August 1987. He was given the option of selecting to either transfer to the Retired Reserve or be discharged. 4. On 20 July 1987, he elected to transfer to the Retired Reserve. Effective 2 February 1987, he was assigned to the USAR Control Group (Retired). 5. The applicant and the FSM were married on 22 June 1988. 6. On 25 December 1996, the FSM reached age 60. 7. On 16 October 2015, the FSM died. 8. The Defense and Accounting Service (DFAS) could not find any information pertaining to the FSM. 9. The applicant was informed by HRC on 8 December 2015 that the FSM did not apply for his retired pay, nor did he make a SBP election; therefore, the applicant was not entitled to a SBP annuity. REFERENCES: 1. Title 10, United States 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, has performed at least 20 years of qualifying service, and performed the last eight years of qualifying service while a member of a Reserve Component. 2. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. 3. Public Law 95-397, the Reserve Component SBP, 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; and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. 4. Section 12731(d) of Title 10, U. S. Code, states that the Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay. The notice shall be sent, in writing, to the person concerned within one year after the person completes that service. Section 12738(a) states that after a person is notified that he or she has completed the years of service required for eligibility for retired pay, the person’s eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of service unless it resulted directly from the fraud or misrepresentation of the person. DISCUSSION: 1. The applicant contends the FSM had the understanding he needed 25 years of creditable service in order to qualify for military retirement through the reserve program. The 20-year letter he was issued notified him he had completed the required years of service to be eligible for retired pay upon application at age 60. 2. By law, retired pay, even though an entitlement, is only paid upon application by the member. Also by law, once a member has received notification of eligibility for retired pay, that eligibility may not be denied. 3. Records at the Defense Finance and Accounting Service (DFAS) and HRC, Reserve Component Retirements Branch, Fort Knox, Kentucky, failed to show the FSM applied for retired pay prior to his death or that he made an SBP election. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160006354 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006354 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2