IN THE CASE OF: BOARD DATE: 15 June 2022 DOCKET NUMBER: AR20210016907 APPLICANT REQUESTS: son of a deceased former service member (FSM), requests correction of his late father's records as follows: * establishment of retired pay at age 60 for his late father * payment of arrears of retirement pay for the period of through 26 April 2021 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant’s self-authored statement * State pf memorandum dated 14 November 1997, Subject: Notification of Eligibility for Retired Pay at Age 60 * DD Form 1883 (Survivor Benefit Plan Election Certificate) * National Guard Bureau (NGB) Form 22 (NGB Report of Separation and Record of Service) * NGB Form 23A (Army Nation Guard (ARNG) Current Annual Statement) * State of Orders Number 342-095 * State of Certificate of Death for applicant’s mother * State of Certificate of Death for FSM * Standard Form (SF) 1174 (Claim for Unpaid Compensation of Deceased Member of the Uniformed Services) for * SF 1174 for * SF 1174 for * SF 1174 for * SF 1174 for * SF 1174 for * SF 1174 for FACTS: 1. The applicant states in effect, he requests the establishment of retired pay for FSM, his deceased father and the payment of arrears of retirement pay to be equally divided amongst the FSM’s children. The FSM served in the South Dakota ARNG for 21-years and honorably retired on 12 August 1999. The FSM would have been eligible to claim his retirement pay at age 60 on; however, he did not submit an application for retired pay. The FSM passed on 26 April 2021 and was not married at the time. The applicant believes the FSM did not know how to file a claim for his retirement pay and if he had known, he would have filed the claim as he was in need of his retirement pension. Before the FSM was assigned to the United States Army Reserve (USAR) Control Group (Retired Reserve), he completed the DD Form 1883 and elected spouse only; however, they divorced, and she remarried and then passed on 24 July 2016. 2. A review of the Former Service Member’s service record shows: a. The FSM’s NGB Form 22 shows he was born on. He enlisted in the ARNG on 30 September 1977. b. He served through multiple extensions in a variety of assignments, and he attained the rank/grade of sergeant first class (SFC)/E-7. c. On 14 November 1997, the State of South Dakota notified the FSM of his eligibility for retired pay at age 60 upon his application for retired pay in accordance with (IAW) Title 10 United States Code (USC), chapter 67. d. On 7 December 1997, the FSM completed the DD Form 1883 (Survivor Benefit Plan Election Certificate). He indicated he was married to on 20 April 1991. He elected spouse only SBP coverage, under Option C (immediate coverage), based on the full amount. Two of the FSM’s minor children at the time were listed as unmarried dependents under the age of 22. Option C is to provide immediate annuity beginning on the day after the FSM’s death whether before or after age 60. e. The FSM was honorably retired from the ARNG on 12 August 1999 and was assigned to the USAR Control Group (Retired Reserve). NGB Form 22 shows he completed 21-years, 10-months, and 13-days of service. f. The FSM’s NGB Form 23A shows he obtained 21-years of creditable/qualifying service for retired pay as of 9 November 1999. g. On 8 December 1999, Orders Number 342-095, issued by the, the FSM was honorably assigned to the USAR Control Group (Retired Reserve). h. The FSM turned 60 years of age on. However, the FSM’s service record is void of any evidence he submitted an application for retired pay or was placed on the retired list. 3. The applicant provides: a. State of Certificate of Death for which shows she was married to and her maiden name was and the date of death was 24 July 2016. b. State of Certificate of Death which shows the FSM’s date of death was 26 April 2021. The applicant was listed as the informant. c. SF Form 1174 shows the FSM’s children as the designated beneficiaries. The children are identified as: * son * son * son * daughter * daughter * daughter * daughter d. State of Certificate of Birth for each of the FSM’s children and the parents listed were the FSM: * male born * female born * male born * female born * male born * female born * female born 4. By law (10 USC § 12731) and regulation, Reserve Component members are required to complete 20 years of qualifying service in order to be eligible for non-regular retirement upon application at age 60. A qualifying year of service for non-regular retired pay is a full year during which a Regular or Reserve member is credited with a minimum of 50 retirement points. 5. When a retiree dies, their final paycheck and any other money owed to them are paid to the person they designated as an Arrears of Pay (AOP) beneficiary. DFAS will reclaim the retiree's final month's pay and audit the account. Any remaining amount owed to the retiree can then be paid to the designated AOP beneficiary. A designated AOP beneficiary must send DFAS the following two documents to receive payment: The SF1174 claim form and a copy of the retiree's death certificate that specifies the cause of death. If the retiree did not designate an AOP beneficiary, DFAS is required to send the AOP payment to the highest person in the legal Order of Precedence. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that 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 and available former service member’s (FSM) military records, the Board determined the FSM received his 20-year letter in 1997, was unmarried, had children and did not complete the necessary election to receive his retirement payments. The Board agreed based on public law the FSM was eligible for non-regular retirement upon application at age 60. The Board determined there was sufficient evidence to grant relief to show the FSM submitted his application for retirement in a timely manner and it was accepted and approved.. Based on this, the Board granted relief for establishment of retired pay at age 60 for the applicant’s late father and payment of arrears of retirement pay for the period of through 26 April 2021. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the FSM submitted his retirement application and it was received and accepted in timely manner. As such any payment of arrears of retirement pay for the period of through 26 April 2021 be provided to the applicant. 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 (USC), section 1223 (Retired Pay for Non-Regular Service), application for retired pay must be made to the Secretary of the military department, or the Secretary of Homeland Security, as the case may be, having jurisdiction at the time of application over the armed force in which the applicant is serving or last served. 2. Department of Defense (DoD) 7000.14 (Financial Management Regulation), paragraph 100204 (Demand for Payment), when payment cannot be made to the member because of member’s death, payment may be made to member’s legal representative. In the absence of a demand for payment by the legal representative, payments are made: To the surviving spouse, heir, or beneficiaries, in the order prescribed by the law applicable to that kind of payment. In the order of precedence in Chapter 30 or if there is no such law covering order of payment, or otherwise prescribed by the law applicable to that kind of payment. 3. Army Regulation (AR) 135-180 (Retirement for Non-Regular Service), implements statutory authorities governing the granting of retired pay for non-regular service to Soldiers in the Army National Guard (ARNG), Army National Guard of the United States (ARNGUS) or the U.S. Army Reserve (USAR). a. Paragraph 4–1 (Application requirements and timelines), it is the responsibility of all qualified individuals to submit their application for retired pay no earlier than 9-months and no later than 90 days prior to the date retired pay is to begin. b. Paragraph 4–7 (Date retired pay begins), retired pay will begin on the day in which the individual meets the requirements for age and service or the first day of any later month that the retiree may elect on the application. There is a 6-year statute of limitations for back pay of retired pay. A claim for retired pay must be filed within 6-years after the date of eligibility for retired pay. If not filed within the 6-year limitation, 1 day’s retired pay will be lost for each day of delay in filing the claim application. c. Paragraph 5–3 (Beneficiary for unpaid retired pay), entitlement to retired pay ceases immediately on the date of the Soldier’s death. The person who the Soldier designated as beneficiary for their unpaid retirement pay will be eligible for the amount of pay due up to and including the date of death. If no beneficiary has been designated, payment will be made to the proper survivor. 4. The Arrears of Pay (AOP) Beneficiary is the person who will receives a retiree's final pro-rated paycheck in the event that the retiree passes away. DFAS will also contact this person for help with closing your account. When a retiree dies, their final paycheck and any other money owed to them are paid to the person they designated as an Arrears of Pay (AOP) beneficiary. When an informant reports a retiree's death, DFAS will reclaim the retiree's final month's pay and audit the account. Any remaining amount owed to the retiree can then be paid to the designated AOP beneficiary. The designated AOP beneficiary must send DFAS the following two documents to receive payment: The SF1174 claim form and a copy of the retiree's death certificate that specifies the cause of death. If the retiree did not designate an AOP beneficiary, DFAS is required to send the AOP payment to the highest person in the legal Order of Precedence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210016907 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1