IN THE CASE OF: BOARD DATE: 4 June 2009 DOCKET NUMBER: AR20090003913 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, enrollment in the Survivor Benefit Plan. 2. The applicant states, in effect, that when he retired in 1971 there was no Survivor Benefit Plan. He states that he initially joined the U.S. Air Force on 12 June 1950, served for 4 years, and then was honorably discharged. Then he entered the Regular Army and served continuously for 16 years. 3. In support of his application, the applicant provides copies of his DD Form 214 (Report of Separation from the Armed Forces of the United States) with a separation date of 14 June 1954; and DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) with a separation date of 9 January 1964, 9 January 1967, and 30 June 1971. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant was born on 14 March 1933. Military personnel records show he enlisted in the U.S. Air Force on 12 June 1950 and served on active duty as a radar operator for 4 years and 3 days. He was honorably discharged on 14 June 1954. 3. On 15 June 1954, the applicant enlisted in the Regular Army (RA) and served for 2 years, 6 months, and 26 days. 4. On 10 January 1958, the applicant reenlisted in the RA for a 6-year period and served continuously until his honorable discharge on 9 January 1964. His DD Form 214 issued this date shows he served 6 years of active duty and that his total net active service was 12 years, 6 days, and 29 months. 5. On 10 January 1964, the applicant reenlisted in the Regular Army for a 3-year period and served continuously until his honorable discharge on 9 January 1967. He was issued a DD Form 214 which shows his total active service was 15 years, 6 months, and 29 days. This same DD Form 214 shows he served in the Republic of Vietnam for 2 years and 22 days as a Field Artillery Radar Crewman in military occupational specialty (MOS) 17B. 6. On 10 January 1967, the applicant reenlisted in the Regular Army for a 5-year period. 7. On 22 July 1969, the applicant signed a DA Form 1041 (Election of Options under Retired Serviceman's Family Protection Plan). Item 7 (Number of Years Completed for Pay Purposes) shows that he had completed 18 years of active duty service at the time he completed the form. Item 11 shows that the applicant did not desire to receive reduced retired pay in order to provide an annuity for his dependents. The applicant indicated that this was his original election. As he did not elect coverage, he did not furnish the name of his spouse or name(s) of his children. A warrant officer/pay grade WO1 witnessed the applicant's election and authenticated this form. 8. On 8 February 1971, the applicant's military personnel record shows that he completed a DA Form 2339 (Application for Voluntary Retirement). Item 10 (Election under Retired Serviceman's Family Protection Plan [RSFPP]) of the DA Form 2339 shows that the applicant did not elect coverage under the RSFPP. 9. On 30 June 1971, the applicant retired from the RA and transferred to the U.S. Army Reserve (USAR) Control Group (Retired Reserve). His DD Form 214 issued this date shows he served in the Republic of Vietnam for 1 year and 5 months. At the time of his separation, the applicant was a sergeant first class (promotable)/pay grade E-7. This same DD Form 214 shows his total creditable active service was 20 years and 20 days. 10. Public Law 87-381, enacted on 4 October 1961, established the Retired Serviceman's Family Protection Plan (RSFPP). The Uniformed Services Contingency Option Act (USCOA) automatically converted to the RSFPP with the same election options and annuity amounts as the USCOA. 11. Public Law 90-485, enacted on 13 August 1968, established the requirement that a Service Member must make an election for the RSFPP before completing 19 years of active duty service. 12. Public Law 92-425, enacted on 21 September 1972, repealed the RSFPP and established the Survivor Benefit Plan (SBP). The SBP provided that military members on active duty could 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. It declared a 12-month Open Season for those members who retired prior to enactment of the law. 13. Public Law 93-155, enacted on 16 November 1973, extended that SBP Open Season from 12 to 18 months effective 21 September 1972 to 20 March 1974. 14. Public Law 95-397, enacted on 30 September 1978, established an SBP Open Season from 1 October 1978 to 30 September 1979; and it was later extended to 31 March 1980. 15. Public Law 97-35, enacted on 12 August 1981, established the SBP Open Season from 1 October 1981 to 30 September 1982. It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity. 16. Public Law 101-189, enacted 29 November 1989, established an SBP Open Season to be conducted 1 October 1991 through 30 September 1992. It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity. 17. Public Law 101-510, enacted on 5 November 1990, delayed the start of the SBP Open Season from 1 April 1992 through 31 March 1993. 18. Public Law 108-375, enacted on 28 October 2004, established an SBP Open Season from 1 October 2005 through 30 September 2006 that allowed members who declined or had less than maximum SBP coverage an opportunity to elect to participate in increasing their coverage up to a maximum base amount of their gross retired pay. 19. Army Regulation 600-8-7 (Army Retirement Services) provides Army policy and procedures for the SBP program as prescribed by public law; publishes the HQDA retiree bulletin Army Echoes; develops policy for the operation of the Army installation Retirement Services Program; and administers the Army Chief of Staff's (CSA) Retiree Council. Army Echoes is an authorized bulletin published three times a year. Its purpose is to keep retired Soldiers informed of their rights and privileges, to update them of developments in the Army, and to inspire goodwill and a desire to support the Army in the civilian community. The Army Echoes publishes the dates of the SBP Open Seasons, once established by legislative action through Congress. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that SBP was not in effect when he retired in 1971 and now he would like to enroll his wife in the SBP so she can receive an annuity from his retired pay. 2. The SBP did not exist in its current form in 1971, when the applicant retired. Prior to SBP, there was the USCOA established by Public Law 83-239 on 8 August 1953. On 4 October 1961, Public Law 87-381 was enacted which established the RSFPP with the same elections and fixed annuity as the USCOA. On 13 August 1968, Public Law 90-485 provided governing rules which state that an election must have been made before a Service Member completed 19 years of service. 3. In preparation for his retirement, the applicant was required to complete and authenticate a DA Form 2339 and a DA Form 1041. The applicant had an opportunity to elect, in effect, a retirement plan for his spouse. That opportunity was on 22 July 1969 after he had completed 18 years of active duty service He declined annuity coverage for his spouse on that occasion. His declination is documented and recorded in his available official military personnel file. 4. There were also six legitimate periods during which the applicant could have enrolled in SBP for spouse coverage during SBP Open Enrollment Seasons. For unknown reasons, the applicant did not enroll in SBP during these Open Season enrollment periods. 5. In summary, the applicant initially declined annuity coverage in 1969 at 18 years of active duty service. He then had six opportunities to enroll in the SBP and for unknown reasons he did not enroll in the SBP during these Open Seasons. As a result, there is no basis for granting the applicant's requested relief. 6. The applicant is encouraged to openly seek the counsel of his local Retirement Services Officer and to read Army Echoes, as published by Department of the Army, for updates on future SBP Open Season enrollment periods. BOARD VOTE: ________ ________ ________ 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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ___________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. ABCMR Record of Proceedings (cont) AR20090003913 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090003913 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1