ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  12 July 2019

	DOCKET NUMBER:  AR20170018024


APPLICANT REQUESTS: in effect, payment of the Survivor Benefit Plan (SBP) annuity, based on the death of her husband, a former service member (FSM). 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* NGB Form 22 (Report of Separation and Record of Service), ending on 1 July 1995 and Honorable Discharge Certificate
* NGB Form 22A (Correction to NGB Form 22) 
* NGB Form 22 ending on 7 November 1990 
* NGB Form 22 ending 31 October 1975
* NGB Form 23B (Army National Guard Retirement Points History Statement)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 
* Certificate of marriage 
* Death Certificate
* DD Form 2656-6 (SBP Election Change Certificate) 

FACTS:

1.  The applicant, widow of a former service member (FSM) of the Georgia Army National Guard (GAARNG) states her husband passed away on 21 October 2016.  She submitted a claim for the SBP annuity to the U.S. Army Human Resources Command (HRC) at Fort Knox, KY but HRC denied her claim.  They stated the FSM only completed 18 years, 4 months, and 18 days of service.  He actually completed 20 or more years of service and applied for retired pay in 2012, but was told he had to wait until he was 65 years old.  Her husband served our country and earned his years of service.  His military records is incorrect.  It should be corrected and the benefits that her husband earned should go to her.  

2.  Review of the FSM's service records shows: 

	a.  The FSM was born on 26 January 1954.  
	b.  He enlisted in the GAARNG on 20 June 1972 and he was honorably discharged from the GAARNG on 31 October 1975.  His NGB Form 22 shows he completed 3 years, 4 months, and 29 days of ARNG service.

	c.  He enlisted in the ALARNG on 8 November 1975 and served through multiple extensions.  He was honorably discharged from the ALARNG on 7 November 1990.  His NGB Form 22 shows he completed 15 years and 7 days of ARNG service.  

	d.  After a break in service from 8 November 1990 to 29 October 1992, he enlisted in the GAARNG on 30 October 1992 and he was discharged from the GAARNG with an under honorable conditions (general) characterization of service on 1 July 1995. 

	e.  His NGB Form 22 shows he completed 2 years, 8 months, and 2 days of ARNG service.  He was transferred to the U.S. Army Reserve Control Group (Reinforcement).

	f.  He was honorably discharged from the U.S. Army Reserve Control (Reinforcement) on 12 December 1995.  

	g.  The FSM and applicant were married on 20 December 2002. 

	h.  The applicant provides a DD Form 2656-6, signed by the FSM on 3 December 2013 (no witness signed this form).  It shows the FSM marked his coverage at the time as "No Coverage" and that he wanted to change that based on his "Remarriage."  He marked "Spouse Only" coverage based on the full retired pay by increasing existing level of coverage to full retired pay.

	i.  His ARNG Form 23B, dated 16 May 2017 shows he completed 11 years of qualifying service towards non-regular retirement.  A second form, dated 25 May 2017, shows he completed 15 years of qualifying service towards non-regular retirement.  

	j.  The FSM died on 21 October 2016.  He was 62 years of age at the time of death.  His death certificate listed the applicant as the informant.   

	k.  There is no evidence in the available records that confirm:

* the FSM completed at least 20 qualifying years of service towards non-regular retirement
* the FSM was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) 

	l.  There is no evidence the applicant applied for payment of the SBP and was denied by HRC or the Defense Finance and Accounting Service. 

5.  By law and regulation, Reserve Component members are required to complete 20 years of qualifying service in order to be eligible for non-Regular retired pay.  A qualifying year of service for non-Regular retired pay is a full retirement year during which a Regular or Reserve member is credited with a minimum of 50 points.

	a.  A person is entitled to retired pay upon application if the person has attained the applicable eligibility age, has performed at least 20 years of service computed under section 12732 of this title, and is not entitled to retired pay from an Armed Force or retainer pay under any other provision of law.

	b.  In order to be eligible for retired pay, an individual must have (1) attained age 60, (2) completed a minimum of 20 years of qualifying service, and (3) served the last 8 years of his or her qualifying service as an RC Soldier (this requirement was lowered to 6 years between October 1991 to December 2001, and lowered to zero effective 26 April 2005).

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 applicant contends the FSM completed 20 years of qualifying service for retirement, and should have been eligible for an SBP election and payments to his beneficiary upon the FSM’s death.  The record shows the FSM did not achieve enough qualifying service credit in order to be transferred to the Retired Reserves, thus making him ineligible for placement on the retirement list at the age of 60.  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.  Army Regulation 135-180 (Qualifying Service for Retired Pay – Nonregular Service) states each Reserve component Soldier who completes the service required to be eligible for retired pay at age 60 under this regulation will be notified in writing within 1 year after he or she has completed that service.  This notification will be issued by the appropriate authority at the time 20 satisfactory years of service are completed.

2.  Army Regulation 135-180 (ARNG and USAR Qualifying Service for Retired Pay Non-regular Service), states that to be eligible for retired pay an individual does not need to have a military status at the time of application for retired pay, but must have:  (1) attained age 60, (2) completed a minimum of 20 years of qualifying service, and (3) served the last 8 years of his or her qualifying service as an RC Soldier.  During the period October 1991 to December 2001, the requirement to serve the last 8 years in an RC was amended to the last 6 years, and on 26 April 2005 this requirement was reduced to zero years.  This regulation also specifies, in part, that each RC Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within 1 year after he/she completes the service.

3.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided military members on active duty an opportunity to 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.  This law also provides that every member having a spouse and/or child(ren), who retires/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list.

4.  Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60.  Three options were available:  

* Option A - elect to decline enrollment and choose at age 60 whether to start SBP participation
* Option 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
* Option C - elect that a beneficiary receive an annuity immediately upon their death if before age 60

5.  Once a member elects either option B or option 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 - the options automatically roll into SBP coverage. If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60.

6.  Title 10, U.S. Code, section 12731, provides the legal age and service requirements for non-Regular retirement.  It states a person is entitled to retired pay upon application if the person has attained the applicable eligibility age, has performed at least 20 years of service computed under section 12732 of this title, and is not entitled to retired pay from an Armed Force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve under any other provision of law.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170018024


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