ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 September 2019 DOCKET NUMBER: AR20170019280 APPLICANT REQUESTS: the records of her deceased husband, a former service member (FSM), be corrected to show his status as retired so she may be eligible for a Survivor Benefit Plan (SBP) annuity. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * FSM's Certificate of Live Birth * Marriage License, dated 21 February 1975 * Orders 063-42, State of Georgia Department of Defense Military Division, Office of the Adjutant General, dated 26 April 1995 * FSM's National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) effective 27 April 1995 * FSM's Certificate of Death/State of Georgia, dated 10 June 2007 * Letter, State of Georgia Department of Defense Casualty Assistance and Retirement Services Division, dated 26 October 2017 * FSM's NGB Form 23B (Army National Guard (ARNG) Retirement Points History Statement) dated 20 September 2017 FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, 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 served his country for 20 years as shown on is NGB Form 22. He was separated without personal notice or issuance of the letter that would qualify her for any benefits after his death. He was never given an opportunity to correct, defend, or appeal this situation. They was just separated after giving 20 years of his life. They never received any of his military documents at this time 3. The FSM was born in May XXXX. He enlisted in the ARNG on 3 April 1975. 4. State of Georgia Department of Defense Military Division, Office of the Adjutant General, Orders 063-41, dated 26 April 1995, reduced him from the rank/grade of sergeant/E-5 to private/E-1 for misconduct. 5. State of Georgia Department of Defense Military Division, Office of the Adjutant General, Orders 063-42, dated 26 April 1995, discharged him from the ARNG under other than honorable conditions effective 27 April 1995. 6. The FSM was discharged from the ARNG under other than honorable conditions on 27 April 1995. The remarks block of his NGB Form 22 states: "Individual was discharged without personal notice per paragraph 8-26q, National Guard Regulation (NGR) 600-200, Chapter 8). 7. The FSM died on 10 June 2007. He was 56 years of age at the time of death. 8. The FSM's ARNG Retirement Points History Statement prepared on 20 September 2017 shows he completed 19 qualifying years of service toward eligibility for retired pay. The FSM only earned 15 membership points is his last year in the ARNG, 35 points short of having credit for 1 more year of qualifying service to be eligible for retired pay with 20 years. He earned more than 50 points in each of his 19 years of qualifying service. 9. On 26 October 2017, the Casualty Assistance and Retirement Services Division of the Georgia ARNG notified the applicant that her eligibility for an SBP annuity based on the military service of her late husband was denied. Additionally, stating the Reserve Component Survivor Benefit Plan established by Public Law 95-397, was to provide an annuity for the spouse and other eligible beneficiaries for Reserve Soldiers or former Soldiers who have completed 20 years of service for retired pay at age 60. The applicant's husband had completed 19 years of service. 10. By law and regulation, Soldiers who complete 20 or more years of service are issued a 20-Year Letter informing them of their retirement eligibility. They are offered the opportunity to enroll in the RCSBP. The law in effect at the time required the Soldier to make an election and return the enrollment form within 90 days of receipt of their letter. The FSM did not complete the required 20 qualifying years of service toward non-regular retirement. ? BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. Evidence of record shows the FSM was discharged for misconduct prior to reaching 20 years of creditable service for retired pay. The Board agreed there was no error or injustice in this case as the FSM did not reached the 20 years required by public law for his transfer to the Retired Reserves. 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. Public Law 95-397, the Reserve Component SBP, enacted 30 September 1978, provided a way for those who qualified for Reserve retirement but were not yet age 60 (and eligible to participate in SBP), 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. If death does not occur before age 60, the Reserve Component SBP costs for options B and C are deducted from the member's retired pay (costs for option C being the more expensive). Once a member elects either Options 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 – it automatically rolls into SBP coverage. If Reserve Component SBP 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. 3. National Guard Regulation 600-200 (Enlisted Personnel Management) in effect at the time, established standards, policies, and procedures for the management of ARNG enlisted soldiers. a. Approval for discharge from service under other than honorable conditions. On determination that a soldier is to be discharged with a discharge certificate under other than honorable conditions, the soldier will be immediately reduce to pay grade E-1 without board action. All Soldiers will be notified of a commander's recommendation for their involuntary discharge. b. Chapter 8-26 (Discharge from State ARNG and/or Reserve of the Army) paragraph (q) prescribed for acts or patterns of misconduct includes misconduct-abuse of illegal drugs. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170019280 3 1