IN THE CASE OF: BOARD DATE: 19 October 2022 DOCKET NUMBER: AR20210015349 APPLICANT REQUESTS: In effect, correction of the records of her deceased husband, a former service member (FSM), to show he completed 20 years of qualifying service for a non-regular retirement prior to his death on 9 May 2019. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Two DD Forms 149 (Application for Correction of Military Record) * Spouses Statement of Events [leading to his death] * Certificate of Death * Report of Casualty * Army National Guard (ARNG) Current Annual Statement x2 * Major General (MG), Minnesota (MNARNG), Adjutant Generals Response to the Applicant’s Senator * G-Mail * Privacy Act Release Form * Character References x2 * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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 the FSM completed 19 years, 11 months, and 5 days of credible service prior to his untimely death. She requests retirement benefits for spouse, as he was just short of his 20-year requirement. The FSM dedicated his time and effort to the MNARNG to provide a secured retirement for himself and his family. Through no fault of his own, his untimely death robbed him of completing his required service. It was his privilege and intent to complete 20 years of service and to gain retirement benefits for him and his family. 3. The applicant provides: a. A statement of events indicating her husband, the FSM, was killed in a car crash on 9 May 2019. The crash occurred less than a month prior to him meeting his requirements for retirement benefits. The FSM spent their married life of 18 years dedicated to the MN ARNG. He was proud to serve and proud of himself for providing steady insurance benefits for his family with a chance to retire with a pension and healthcare. On Friday, 3 May 2019, he drove from to their home in for his weekend Guard duty. He had gone to school for Mine Equipment Operator and took employment where he was needed in. After Guard duty, on 6 May [2019] he drove back to. On 9 May 2019, he was killed in a car collision in, on his way back from work to the place he was staying. It was soon after his death that she learned her Tri-Care Benefits would end and the retirement he had worked so hard for was being taken away from his family. Through no fault of his own, a horrific event took away apart of the future they both had sacrificed for and worked hard to achieve. He was so close to achieving one of his main goals. He would have secured retirement benefits on 4 June 2019. b. Certificate of Death showing the FSM died in a car crash on 9 May 2019. c. Report of Casualty confirming the FSM died, on 9 May 2019, of multiple blunt force trauma due to motor vehicle accident, per a certificate of death. d. Two ARNG Current Annual Statements: * Annual Statement, dated 17 May 2019, showing he only had 19 years of qualifying service for [non-regular] retirement pay * Annual Statement, dated 7 June 2019, showing he had 20 years of qualifying service for [non-regular] retirement pay e. MNARNG, Adjutant Generals Response to the applicant’s Senator, dated 15 August 2019, stating the MNARNG did not have the authority to make an exception to the Federal 20-year service requirement. f. Email from Sergeant First Class dated 20 January 1921, stating the FSM’s AYE [anniversary year] was a factor affecting his retirement benefits. He had 19 years of creditable service and would have 20 creditable years on 4 June 2019. g. Privacy Act Release Form, showing the Privacy Act required written consent for a government agency to release information to another agency regarding the FSM’s records. This form was signed on 29 September 1921. h. Two Character References: (1) The FSM’s Commander, Major, stated in a letter, dated 10 June 2021, that he had known the FSM more than 12 years, before their deployment to Afghanistan for Operation Enduring Freedom from 2011 to 2012 and he was an exceptional noncommissioned office (NCO). He was also his commanding officer during their deployments with “NTM-A” during a (National Atlantic Treaty Organization (NATO) Training Mission in Afghanistan) and during their service stateside with the “2-135 INF REG,” and “HQ, 3410 Division.” The FSM was an expert in the field and was relied upon continuously during his service overseas and stateside. He was the only NCO who earned the Meritorious Service Medal (MSM) for his outstanding performance in Afghanistan and the qualities that he possessed as a leader, mentor, and honorable individual. As a commander and leader of many men, the FSM was relied on to get the job done correctly and in a manner that instill trust and confidence to complete any mission. The FSM demonstrated professionalism, pride, and a sense of duty to his unit and the nation. His untimely death created a great void in the organization, his knowledge of small arms, expertise, and his personality is greatly missed. He recommend the Board/ leadership approve an exception to policy to have the FSM’s retirement given to his family due to his tragic loss. (2) Mr. CW4 (Retired) states in a letter, dated 21 September 2021, the FSM served as a weapons instructor at Fort McCoy, WI, between 2008 and 2009. He was the lead instructor for the Small Arms Readiness Group Detachment 4. During his time as weapons instructor with SARG Det. 4, the FSM was the "go to" expert in all things involving machine guns. The FSM was very knowledgeable of all U.S. Army small arms, especially the “Browning M2 MG, 240B MG, 249 SAW, and the Mark 19 Grande Launcher.” The FSM would always be the first to report in each day and he would be the last to leave. He did the work of two other instructors. His leadership, hard work, and strong sense of duty were very important to the overall success of SARG Det. 4, Fort McCoy. He recommends the Board approve an exception to policy to award the FSM’s retirement [benefits] to his family. He may be short a few days of 20 years of service, but through his professionalism, hard work, and leadership, the FSM earned his retirement. 4. A review of the FSM's service record shows he was born on 14 November 1975. He married his spouse on 26 June 2001. He served honorably in the Regular Army from 14 April 2011 to 7 July 2012, until he was released and transferred to the MNARNG. 5. A Certificate of Death shows he died on 9 May 2019, due to a motor vehicle accident of multiple blunt force trauma. A Casualty Report confirms the same. 6. An ARNG Annual Current Statement, dated 17 May 2019, shows from 24 March 1995 to 18 October 2018, he earned 19 years of creditable service for retired pay. 7. An ARNG Annual Current Statement, dated 7 June 2019, shows from 19 October 2018 to 4 June 2019, he earned the following additional points for a grand total of 20 years: MMSI IDT MEM ACCP FHD AD VS Total Career Total Points Creditable Svc Points For Ret Pay for Retired Pay B1 22 15 0 0 0 V 121 121 1/00/00 2,663 3,623 3,547 20/00/00 8. On 15 August 2019, the MSARNG responded to the applicant’s Senator stating the ARNG did not have the authority to make an exception to the Federal 20-year service requirement. 9. A Memorandum for Record, subject: statement of service for the FSM, dated 30 August 2019, certifies: a. Period Covered Membership Status City and State 05 June 2004 -16 January 2006 ARNG Member Cambridge, MN 17 January 2006 -16 January 2008 ARNG Mobilized Service Iraq 17 January 2008 -15 January 2009 CO-ADOS -OEF Fort Sill, OK 16 January 2009-14 July 2009 CO-ADOS -OEF/OWT Fort McCoy, WI 15 July 2009-15 December 2010 FTNG-OS -OEF/OIF CRTC Little Falls, MN 16 December 2010 -13 April 2011 ARNG Member Bloomington, MN 14 April 2011 -07 July 2012 ARNG Mobilized Service Bagram, Afghanistan 08 July 2012 -23 December 2014 ARNG Member Cambridge, MN 24 December 2014 -22 August 2018 ARNG Member Litchfield, MN 23 August 2018-09 MAY 2019 ARNG Member Rosemount, MN b. Days prior inactive military service: 05 Years, 11 Months, 11 Days. c. Days prior active military service: 00 Years, 00 Months, 00 Days. d. The FSM was authorized the following awards in accordance with AR 600-8-22 (Military Awards) and MNGR 600-8-22 for his service: (1) Meritorious Service Medal 2nd Award (2) Army Commendation Medal 2nd Award (3) Army Achievement Medal 2nd Award (4) Army Good Conduct Medal 1st Award (5) Army Reserve Components Achievement Medal 4th Award (6) National Defense Service Medal 2nd Award (7) Afghanistan Campaign Medal with Campaign Star (8) Iraq Campaign Medal with two Campaign Stars (9) Global War on Terrorism Service Medal (10) Humanitarian Service Medal (11) Armed Forces Reserve Medal with "M" Device (12) Armed Forces Reserve Medal with Bronze Hourglass (13) Army Noncommissioned Officers Professional Development Ribbon 3rd Award (14) Army Service Ribbon (15) Overseas Service Ribbon 2nd Award (16) Minnesota Good Conduct Ribbon 4th Award (17) Minnesota State Active-Duty Ribbon (18) Minnesota Service Ribbon 4th Award (19) Combat Action Badge 10. AR 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records): a. Paragraph 2-2 (Criteria for earning retirement points) states retirement points may be earned by U.S. Army Reserve Soldiers for active duty or duty in an active status for active duty for training (ADT), initial active duty for training (IADT), involuntary active duty for training (involuntary ADT), voluntary IDT, annual training (AT), IDT, membership points, and for other activities specified in this regulation. * Four-hour rule; Soldiers earn one point for each scheduled 4-hour period of IDT at Battle Assembly, Rescheduled Training (RST), Equivalent Training, or Additional Training Assemblies * Two-hour rule; Soldiers earn one point for each IDT period per day for funeral honors duty with a maximum of one point per calendar day * Four/eight-hour rule; Soldiers earn one point for each 4 hour or greater period, award of a second point in the same day requires additional hours to bring the day's total to a minimum of 8 hours for a maximum of two points in 1 calendar day b. Paragraph 3-3 (DA Form 1380) states nonpaid DA Forms 1380 will not be entered into Automated Drill Attendance Reporting Software (ADARS) and will be forwarded to the Human Resources Command (HRC) for award of retirement points no later than the end of each duty month. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records, the Board determined prior to the applicant’s untimely death he had completed 19 years of total service for retired pay, he is eligible to retire under 10 U.S. Code § 12731, (15-year notice of eligibility). As a matter of justice, the Board granted partial relief to provide the applicant with a notification that the applicant has completed at least 15, and less than 20 of service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by Human Resources Command (HRC) issue a notification that the applicant has completed at least 15 years. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to correction that he completed 20 years of qualifying service at his death on 9 May 2019. 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, United States 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 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. 2. Public Law 95-397 dated 30 September 1978, established the Reserve Component Survivor Benefit Plan (RCSBP) open enrollment, 1 October 1978 - 30 September 1979; later extended to 31 March 1980. The RCSBP part of SBP protects a portion of the service member’s retirement income from Notice of Eligibility for Retired Pay up to age 60. Beyond age 60, retirement income is protected by the normal SBP. a. This law 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. Four basic choices are available: Decline to participate; if a Reservist has an eligible beneficiary at time of election and declines to participate, that decision is irrevocable. If the Reservist has no eligible beneficiary at time of election and declines to participate, the Reservist will be allowed to elect participation at a later date based upon marriage, children, or gained insurable interest. b. 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 receives an annuity immediately upon their death if before age 60. At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applied for retired pay and elected to participate in the standard SBP. 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 – the options automatically roll into SBP coverage. c. Paragraph 2-2 (Criteria for earning retirement points) states retirement points may be earned by U.S. Army Reserve Soldiers for active duty or duty in an active status for active duty for training (ADT), initial active duty for training (IADT), involuntary active duty for training (involuntary ADT), voluntary IDT, annual training (AT), IDT, membership points, and for other activities specified in this regulation. * Four-hour rule; Soldiers earn one point for each scheduled 4-hour period of IDT at Battle Assembly, Rescheduled Training (RST), Equivalent Training, or Additional Training Assemblies * Two-hour rule; Soldiers earn one point for each IDT period per day for funeral honors duty with a maximum of one point per calendar day * Four/eight-hour rule; Soldiers earn one point for each 4 hour or greater period, award of a second point in the same day requires additional hours to bring the day's total to a minimum of 8 hours for a maximum of two points in 1 calendar day d. Paragraph 3-3 (DA Form 1380) states nonpaid DA Forms 1380 will not be entered into Automated Drill Attendance Reporting Software (ADARS) and will be forwarded to HRC for award of retirement points no later than the end of each duty month. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210015349 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1