BOARD DATE: 6 June 2017 DOCKET NUMBER: AR20160010859 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 BOARD DATE: 6 June 2017 DOCKET NUMBER: AR20160010859 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. BOARD DATE: 6 June 2017 DOCKET NUMBER: AR20160010859 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 surviving spouse of the deceased former service member (FSM), requests, in effect, correction of her late husband's records to show he was eligible to receive retired pay upon reaching age 60 and that he made an election to participate in the Survivor Benefit Plan (SBP). 2. The applicant states her late husband was erroneously denied retired pay because someone decided he only had 19 years of service. She states she was going through paperwork and she came across a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 3. The applicant provides: * DD Form 2656-7 (Verification for Survivor Annuity), dated 4 June 2016 * self-authored statement, dated 3 June 2013 * birth certificate (filed on 5 May 1931) * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 20 December 1951 * Authorization for Medical Examination, dated 24 May 1967 * 20-year letter, dated 12 August 1974 * marriage certificate, dated 25 July 1987 * death certificate, dated 2 February 2005 * will (undated) 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 in Belle Plaine, Iowa, on 3 May 1931. 3. He enlisted in the Iowa Army National Guard (IAARNG) on 21 December 1948. He was separated from the IAARNG on 23 April 1965 after completing 16 years, 4 months, and 3 days of creditable service for retired pay and he was assigned to the U.S. Army Reserve (USAR) Control Group (Standby). 4. On 12 December 1968, the FSM forwarded a memorandum to the Commanding Officer, U.S. Army Administration Center, electing transfer to the Retired Reserve. 5. Office of the Adjutant General Letter Order USAR 1-15244 was published removing the FSM from active USAR status and transferring him to the USAR Control Group (Retired) effective 22 January 1969. 6. On 12 August 1974, the FSM was issued a 20-year letter, notifying him that, having completed the required years of service, he would be eligible for retired pay upon application at age 60 in accordance the provisions of Title 10, U.S. Code, chapter 67. The letter states his eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation or administrative determination of years of creditable service performed unless it resulted directly from fraud or misrepresentation on the FSM's part. This letter states notwithstanding the foregoing, the number of years of creditable service upon which retired pay is computed may be adjusted to correct any error, miscalculation, misinformation, or administrative determination, and when such a correction is made he would be eligible for retired pay in accordance with the number of years of creditable service, as corrected, from the date retired pay is granted. 7. The FSM married the applicant on 25 July 1987. He reached age 60 on 3 May 1991. He died on 6 January 2005. 8. During the processing of this case, an advisory opinion was obtained from the Chief, Reserve Component Retirements Branch, U.S. Army Human Resources Command, recommending denial of the applicant's request. This official states the FSM only had 16 years, 4 months, and 3 days of qualifying military service. This official also states that under the provisions of Army Regulation 135-180, paragraph 2-3, a Soldier must have completed a minimum of 20 qualifying years of military service to be eligible for retired pay at age 60 under the provisions of Title 10, U.S. Code, sections 12731-12737. In order for his spouse to be eligible for SBP, the Soldier must be eligible to received retired pay at age 60. 9. The applicant was furnished a copy of the advisory opinion for her information and/or possible rebuttal. On 4 August 2016, she submitted a rebuttal stating that errors were made in the calculation of the FSM's retirement points. She refers to a number of courses that the FSM attended while he was in the IAARNG, which she believes he should have been given greater credit. She states the FSM was only credited with service to 1965. However, he served 3 years beyond 1965. The applicant also refers to the 20-year letter the FSM received, stating his eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation or administrative determination of years of creditable service performed unless it resulted directly from fraud or misrepresentation on the FSM's part. 10. Along with her rebuttal to the advisory opinion, the applicant provided the following document pertaining to the FSM: * Army National Guard Retirement Points History Statement showing service from 21 December 1948 through 23 April 1965 * NGB Form 22 showing the FSM completed Ordnance Automotive School and received 235 total points during this period of service * NGB Form 22 showing the FSM earned 225 total points during the period 21 December 1951 through 20 December 1954 * the FSM's academic record * Authorization for Medical Examination, dated 23 June 1967 * Reserve Commissioned Officer Promotion memorandum, dated 9 August 1967 * 20-year letter, dated 12 August 1974 11. A review of the available records fails to show that the FSM ever applied for retired pay upon reaching age 60 and that he was denied. REFERENCES: 1. Public Law 92-425, enacted 21 September 1972, repealed the Retired Serviceman's Family Protection Plan and 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. An election, once made, was irrevocable except in certain circumstances. It declared a 12-month open enrollment season for those members who retired prior to enactment of the law. 2. Public Law 95-397, 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 chose to age 60 whether to start SBP participation, (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment if 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's contention has been noted and her supporting evidence has been considered. 2. Although the FSM's Retirement Points History Statement appears to be incomplete, there is no evidence in the available records and the applicant has not provided sufficient evidence to support her contention that the FSM applied for retired pay upon reaching age 60 or at any time after reaching age 60 and was denied. 3. He was issued a 20-year letter, dated 12 August 1974, notifying him that having completed the required years of service, he would be eligible for retired pay upon application at age 60 in accordance the provisions of Title 10, U.S. Code, chapter 67. He reached age 60 on 3 May 1991 and although the applicant contends that the FSM told her he applied for and was denied retired pay, there is no evidence in the available record supporting her contentions. 4. It appears the FSM failed to apply for retired pay at age 60. Moreover, there is no evidence he ever elected to provide RCSBP/SBP coverage of any kind to any person, as was his option. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160010859 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160010859 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2