AR20160005243

IN THE CASE OF:

BOARD DATE: 17 May 2016

DOCKET NUMBER: AR20160005243

BOARD VOTE:

___x____ ___x____ ___x____ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

IN THE CASE OF:

BOARD DATE: 17 May 2016

DOCKET NUMBER: AR20160005243

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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:

* redistributing two of the FSM’s excess retirement points to the year 3September 2002 to 2 September 2003 thus providing him with a full qualifying year of service for the retirement year ending 2 September 2003
* issuing him a 20-year letter effective 4 December 2015, the date he attained 20 qualifying years of service for non-regular retirement based on the retirement points adjustment
* showing his spouse did not decline RCSBP and that he elected Option C immediate coverage based on the full amount of his retired pay on 4 December 2015
* paying his spouse the SBP annuity starting the date after his death based on this correction

_______ _ _x______ ___
CHAIRPERSON

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.

IN THE CASE OF:

BOARD DATE: 17 May 2016

DOCKET NUMBER: AR20160005243

THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1. Application for correction of military records (with supporting documents provided, if any).

2. Military Personnel Records and advisory opinions (if any).

THE APPLICANT’S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, in effect, correction of the former service members (FSM) records to show he qualified for non-regular retirement.

2. The applicant states:

a. For unknown reasons the FSM did not complete a qualifying year of service for non-regular retirement in 2002 to 2003 during his time with the Oklahoma Army National Guard (OKARNG). His Master Military Pay Account (MMPA) history indicates that he was excused from multiple unit training assemblies (MUTA). He reached his expiration of term of service (ETS) before accumulating enough points for a qualifying year of service for retirement.

b. He resolved his drilling conflicts, reenlisted, and graduated from the Officer Candidate School. He deployed twice in support of Operation Enduring Freedom (OEF). He received three Bronze Service Stars during his deployments. His service with the Missouri Army National Guard (MOARNG) was exceptional. He was projected to accumulate enough points for a qualifying year for non-regular retirement if he had reached his retirement year ending (RYE) date.

c. Adjusting his retirement points for the year 2002 to 2003 would result in a qualifying year for non-regular retirement and potentially award his family with non-regular retirement benefits [Survivor Benefit Plan (SBP)].

d. He was an interstate transfer between the OKARNG and the MOARNG. His pay records did not transfer over. Upon his death, his MMPA and leave and earning statements were requested in order to ensure all of his service was properly credited.

3. The applicant provides:

* DD Form 1300 (Report of Casualty)
* DA Form 5016 (Chronological Statement of Retirement Points)
* National Guard Bureau (NGB) Form 23A (Army National Guard Current Annual Statement)
* MMPA Report
* FSMs death certificate

CONSIDERATION OF EVIDENCE:

1. After having prior enlisted service in the U.S. Army Reserve (USAR) and the Regular Army, the FSM was appointed as a Reserve commissioned officer on 3November 2005. He was called to active duty on two separate occasions in support of OEF. He served in Kuwait and Afghanistan.

2. The FSM died on 15 February 2016. He was not on active duty on that date. His death certificate shows he was married. His 12 January 2014 record of emergency data confirms he was married and had three minor children.

3. His most recent/updated NGB Form 23A, dated 23 February 2016, shows he completed 19 years of qualifying service for non-regular retirement effective 4December 2014. A breakdown of his retirement points is as follows:

FROM
TO
Component
Points
QUAL YEAR

Prior Service

19940603
19950525
USAR
0
00/00/00
19950526
19950602
USAR
45
00/00/00

20011201
20020602
USAR
189
01/00/00
20020603
20020902
Civilian Break
0
00/00/00
20020903
20030902
ARNG
48
00/00/00
20030903
20031204
Civilian Break
0
00/00/00
20031205
20041204
ARNG
74
01/00/00

20121205
20131204
ARNG
56
01/00/00
20131205
20141204
ARNG
65
01/00/00
20141205
20150409
ARNG
0
00/00/00
20150410
20151204
ARNG
68
01/00/00
20151205

ARNG
0
00/00/00

TOTAL

3925
19/00/00
REFERENCES:

1. Title 10, U.S. Code, sections 12731 through 12740 authorize retired pay for Reserve component military service. Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60. Section 12731 states a person is entitled, upon application, to retired pay computed under section 12739 of this title, if the person has attained the eligibility age applicable under the appropriate subsection and has performed at least 20 years of service computed under section 12732 of this title.

2. Department of Defense Instruction 1215.7 (Service Credit for Reserve Retirement), paragraph 6.1.5.2. states that when, as a result of a break-in-service, a partial year occurs, the Service member must meet the minimum retirement point requirement set out in this Instruction for the member’s service to be credited as a partial year towards a qualifying year. A partial qualifying year is any period less than 12 full months in which the retirement points credited to a member, when computed proportionally, are equal to or greater than 50 points.

3. Public Law 95-397, the Reserve Component (RC) SBP, enacted 30September 1978, 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. Three options are 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 members 60th birthday
* Option C, elect that a beneficiary receive an annuity immediately upon their death if before age 60; if death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.

4. Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60. The law is applicable to cases where 20-year letters are issued after 1 January 2001. In other words, failure to elect an option now results in the default election of Option C. The declination, with the spouse’s written consent, must be made before the end of the 90-day period beginning on the date on which the member receives his/her 20-year letter.

5. Army Regulation 138-180 (Retirement for Non-Regular Service) implements statutory authorities governing the granting of retired pay for non-regular service. Under Title 10, U.S. Code, section 12731 RC Soldiers who complete the eligibility requirements for non-regular retirement will be notified within 1 year after completion of the required service. The notification of eligibility for retired pay at age 60 (20-year letter) will be issued to Soldiers credited with 20 years of qualifying service. The U.S. Army Human Resources Command is authorized to issue 20-year letters.

DISCUSSION:

1. The FSM had enlisted service in the Regular Army and the USAR. He then served in the ARNG as a commissioned officer from 3 November 2005 until his death on 15 February 2016. His retirement points as verified by his most recent DA Form 5016 shows he completed 19 years of qualifying service toward non-regular retirement at age 60 effective 4 December 2015.

2. The law requires completion of 20 qualifying years of non-regular service in order to be eligible for non-regular retired pay at age 60. On the date of his death, he had not completed 20qualifying years of service. From a statutory or regulatory standpoint, he is ineligible for non-regular retired pay at age 60. As he had not received his 20-year letter, no RCSBP election could be made.

3. However, since his 2005 appointment in the ARNG, the FSM was an active participant in a troop program unit receiving membership points, completing his inactive duty training and annual training, and deploying in support of OEF. During his RYE 3 September 2002 through 2 September 2003, he earned a total of 48retirement points. That year he was two points short of earning a qualifying year. A qualifying year is defined as one wherein the RC Soldier has earned 50retirement points.

4. Based on his honorable service in the various components of the Armed Forces, both as an enlisted Soldier and a commissioned officer, it is clear that if he had not died, he would have continued to serve and earn the required amount of points for his next RYE of 4 December 2016. Unfortunately he died. A review shows he lacked 2retirement points for the RYE ending on 2 September 2003 that would have allowed him to reach 20 years of qualifying service for non-regular retired pay by his RYE of 4 December 2015.

5. The FSM earned in excess of 50 retirement points during all but one of his qualifying years in the ARNG. As a matter of equity, by redistributing two of his excess points to RYE 3 September 2002 through 2 September 2003, it would credit him with 50 retirement points for that RYE and thus a qualifying year.

6. The above correction would entitle him to receipt of his notification of eligibility to receive retired pay at age 60 (his 20-year letter) effective his RYE 4 December 2015, and by law an annuity for his dependents assuming his spouse would not have formally declined the RCSBP upon receipt of his 20-year letter. There appears to be sufficient evidence to support the applicants contention.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20160005243

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20160005243

5

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2