ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  3 July 2019

	DOCKET NUMBER:  AR20160019691


APPLICANT REQUESTS:  entitlement to her deceased husband’s retirement benefits

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Miscellaneous documents and certificates

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states her husband passed away before his 60th birthday at which time he would have applied for retirement.  She is applying for his retirement benefits for herself and her son, who was ten when his father passed.  

3.  The applicant provides:

     a.  A marriage certificate showing she and her husband were married on 3 April 1985. 

     b.  A Certification of Birth, dated 13 September 2000, showing that she and her husband had a son on 13 September 2000.

     c.  A Local Registrar’s Certification of Death, dated 19 November 2010, which shows that her husband died on 15 November 2010.  He was fifty-five at the time.  

     d.  A series of documents pertaining to her 23 March 2016 application for an annuity, which include:

          (1)  A DD Form 2656-7 (Verification for Survivor Annuity), 

          (2)  A Form W-4 (Employee’s Withholding Allowance Certificate), and

          (3)  A Standard Form 1199A (Direct Deposit Sign-up Form).

     e.  A letter from the U.S. Army Human Resources Command (HRC)—Reserve Components Retirements, dated 27 September 2016, denying her claim for a Reserve Component Survivor Benefit Plan (RCSBP) annuity.

     f.  A DA Form 5016 (Chronological Statement of Retirement Points), dated 27 September 2016, showing applicant’s husband had nineteen years of qualifying service for purposes of a non-regular retirement.

4.  A review of the FSM’s service record shows:  

     a.  He enlisted in the United States Army Reserve (USAR) on 25 January 1975.

     b.  On 25 January 1995, the FSM’s unit prepared a Form 876-R (Request for Notification of Retirement Pay Eligibility—20 Year Certification).  The form asks that the Army Reserve Personnel Center (ARPERCEN) prepare a 20 Year Letter.  It indicates that the “Soldier has completed 20 good years of service as of 24 January 1995” and references four enclosures the following two of which were available:   

          (1)  A two page DA Form 249-1-R (Request for Correction of Chronological Statement of Retirement Points for USAR Troop Program Unit Soldiers) signed by applicant and his commander.  It appears the correction sought related to a period of Active Guard Reserve service.  The form lists applicant’s service from his initial enlistment through 24 January 1995.  

          (2)  A DD Form 214 (Report of Separation from Active Duty), dated 6 December 1975, showing applicant honorably performed three months and twenty-five days of Active Duty for Training (ADT) after which he was returned to the control of the Army Reserve.

     c.  His record is void of any response from ARPERCEN to the request that a 20 Year Letter be issued or of any notification from any source that he was not, in fact, eligible for non-regular retirement at age 60.

     d.  Orders 210-32, issued by Headquarters, 99th Regional Support Command, Oakdale, Pennsylvania and dated 29 July 1995, assigned him to the USAR Control Group (Retired) effective 9 July 1995 by reason of voluntary retirement.

5.  A comparison of the FSM’s DD Form 214, dated 6 December 1975, DA Form 249-1-R, dated 25 January 1995, and his DA Form 5016, dated 7 September 2016, which accompanied HRC’s denial of the applicant’s request for benefits reveals an apparent discrepancy with the crediting of applicant’s period of ADT.                 
BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found the relief was not warranted.  The applicant’s contentions were carefully considered.  The FSM’s record is absent evidence showing he elected RCSBP prior to being placed in the Retired Reserve.  Public law requires members to elect RCSBP coverage and make payments in order for payments to be made upon death.  Based upon the preponderance of evidence, the Board determined there is insufficient evidence to grant relief.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

X	X	X	DENY APPLICATION


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.

REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.
2.  Army Regulation 15-185, (Boards, Commissions, and Committees—Army Board for Correction of Military Records), provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for correction of a military record.  Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

3.  Title 10, USC, section 12731, in effect at the time, provides that a person is entitled upon application, to retired pay computed under section 12739 of this title, if the person has attained the eligibility age and has performed at least 20 years of service computed under section 12732 of this title.  The Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay under this chapter.  The notice shall be sent, in writing, to the person concerned within one year after the person completes that service and shall include notice of the elections available to such person under the Survivor Benefit Plan.

4.  Title 10, USC, section 12732, in effect at the time, generally provides that a person’s years of service for purposes of determining whether a person is entitled to retired pay under section 12731 of this title are each one year period in which the person is credited with at least 50 points.  A person receives one point for each day of active service or annual training duty or attendance at a prescribed course of instruction at a service school, one point for each day of attendance at drill to include under title 32, and 15 points per year for membership in a reserve component of an armed force, including the National Guard.  Service in the inactive National Guard does not count.

5.  Title 10, USC, section 12738, in effect at the time, provides that once a person is notified in accordance with section 12731 of this title that the person has completed the years of service required for eligibility for retired pay under this chapter, 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 performed as required by section 12731 of this title, unless it resulted directly from the fraud or misrepresentation of the person.  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 the person is entitled to retired pay in accordance with the number of years of creditable service, as corrected, from the date the person is granted retired pay.  

6.  Title 10, section 1448, in effect at the time, provides the general rules for application of the Survivor Benefit Plan and Reserve Component Survivor Benefit Plan (RCSBP).  With respect to the RCSBP, it states in pertinent part, that the Secretary concerned shall pay an annuity to the surviving spouse of a person who is eligible to provide a reserve component annuity and dies before being notified under section 12731 of this title that he has completed the years of service required for eligibility for reserve-component retired pay.    

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20160019691


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