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ARMY | BCMR | CY2003 | 2003087723C070212
Original file (2003087723C070212.rtf) Auto-classification: Denied




RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 20 November 2003
         DOCKET NUMBER: AR2003087723


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun Director
Ms. Beverly A. Young Analyst


The following members, a quorum, were present:

Mr. Robert Duecaster Chairperson
Ms. Joann Langston Member
Ms. Linda D. Simmons Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

         Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:


1. The applicant requests that he be enrolled in the Survivor Benefit Plan (SBP).

2. The applicant states he was not married during the open season from 1 March 1999 through 29 February 2000.

3. The applicant provides a DD Form 2656-3 (SBP and Reserve Component Survivor Benefit Plan (RCSBP) Open Enrollment Election) and his marriage license.

CONSIDERATION OF EVIDENCE:

1. The applicant was born on 27 February 1950. He married his first wife in June 1968 and was divorced on 6 June 1986.

2. The applicant married his second wife in January 1991. After having prior service as an enlisted soldier, he was appointed as a Reserve commissioned officer on 5 April 1992.

3. Records at the U. S. Army Human Resources Command - St. Louis show the applicant received his certification of eligibility for Reserve retirement benefits at age 60 (commonly known as a "20-year retirement letter") on 20 March 1995. Records there also show he submitted a DD Form 1883 (SBP Election Certificate) on 30 May 1996; however, this election form was submitted outside the 90-day window.

4. By a 16 February 1996 letter from the Chief, Retired Activities Division,
U.S. Army Reserve Personnel Center, the applicant was informed that he was ineligible to participate in the RCSBP. This letter indicates that the applicant did not return the RCSBP election forms within the 90-day timeframe.

5. The applicant divorced his second wife on 2 March 1998.

6. The applicant remarried on 7 June 2000.

7. The applicant submitted a DD Form 2656-3 dated 24 February 2003. He elected coverage for "Spouse Only" based on full gross retired pay. He also elected immediate annuity (Option C).

8. Public Law 95-397, the RCSBP, enacted 30 September 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: (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 60 th birthday; (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 RCSBP costs for options B and C are deducted from the member's retired pay. A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP.

9. Title 10, U.S. Code, section 1448(a)(5) provides that a person who is not married or has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP. Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child.

DISCUSSION AND CONCLUSIONS :

1. The evidence of record shows the applicant received his certification of eligibility for Reserve retirement benefits at age 60 on 20 March 1995. He was married at the time; however, he failed to enroll in the RCSBP in a timely manner and his election was invalid.

2. The applicant married his third wife on 7 June 2000. However, because he was married at the time he became eligible to participate in the RCSBP (but failed to enroll within the prescribed timeframe) by law he must wait until another Open Season is declared or until he reaches age 60 and is eligible to enroll in the standard SBP.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

RD ______ JL ______ LDS _____ 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.





                  Robert Duecaster______
                  CHAIRPERSON


INDEX

CASE ID AR2003087723
SUFFIX
RECON YYYYMMDD
DATE BOARDED 20031120
TYPE OF DISCHARGE (HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE YYYYMMDD
DISCHARGE AUTHORITY AR . . . . .
DISCHARGE REASON
BOARD DECISION DENY
REVIEW AUTHORITY Mr. Chun
ISSUES 1. 137.0000
2.
3.
4.
5.
6.


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