RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 September 2005
      DOCKET NUMBER:  AR20040010578


      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:

|     |Ms. Shirley Powell                |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |Member               |
|     |Ms. Jeannette McCants             |     |Member               |

      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, in effect, that his records be corrected to
show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) for
spouse coverage, option B.

2.  The applicant states the current election was made while he was in an
Active Guard Reserve (AGR) status.  He thought he would retire from active
duty, but he was retired from the Reserve.  He was told that he could not
change his election, but he was recently told that it could be changed.

3.  The applicant provides a copy of his DD Form 1883 (Survivor Benefit
Plan Election Certificate).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred
on 1 March 1996, the date he was transferred to the Retired Reserve.  The
application submitted in this case is dated 23 November 2004.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant was born on 29 November 1946.  After having had prior
service in the Air Force, he enlisted in the Army National Guard on 16
February 1974.  He was ordered to active duty in an AGR status on 16 July
1985.

4.  He was married on 20 December 1986.

5.  The applicant's notification of eligibility to receive retired pay at
age 60 (his 20-Year Letter) is not available.  On 1 February 1992, the
applicant completed a DD Form 1883 and elected not to participate in the
RCSBP.  His spouse signed the DD Form 1883.  The front page of the DD Form
1883 clearly states "IMPORTANT:  The decision you make with respect to
participation in this Survivor Benefit Plan is a permanent irrevocable
decision.  Please consider your decision and its effect very carefully."
In item 9c on the applicant's DD Form 1883, he elected option A (Defer).
6.  Item 9c on the applicant's DD Form 1883 clearly described the three
options. The three options available are also clearly explained on the
reverse side of the form, just above the signature blocks:

      "OPTION A – I DECLINE TO MAKE AN ELECTION AT THIS TIME (I will remain
      eligible to make an election for coverage at age 60.)";


      "OPTION B – I ELECT TO PROVIDE AN ANNUITY BEGINNING ON THE 60TH
      ANNIVERSARY OF MY BIRTH SHOULD I DIE BEFORE THAT DATE, OR ON THE DAY
      AFTER DATE OF DEATH SHOULD I DIE ON OR AFTER MY 60TH BIRTHDAY"; and


      "OPTION C – I ELECT TO PROVIDE AN IMMEDIATE ANNUITY BEGINNING ON THE
      DAY AFTER DATE OF MY DEATH, WHETHER BEFORE OR AFTER AGE 60."

7.  He was released from active duty on 7 November 1995 and was transferred
back to his National Guard unit.

8.  The applicant was released from the Army National Guard on 1 March 1996
and was transferred to the U.S. Army Reserve Control Group (Retired).

9.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that
military members could elect to have their retired pay reduced to provide
for an annuity after death to surviving dependents.

10.  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 60th 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.  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 – it automatically rolls into SBP coverage.




11.  The National Defense Authorization Act (NDAA) for fiscal year 2005
establishes a one-year open enrollment period for the SBP beginning 1
October 2005.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's 20-Year Letter is not available.  However, he completed
a DD Form 1883 on 1 February 1992 and declined to participate in the RCSBP.


2.  The applicant contends he was notified that he could not change his
election, but he was recently told that it could be changed.  Both
statements were true.  He had made an irrevocable decision when he elected
option A.  However, he will have a one-year period, beginning on 1 October
2005, in which to enroll in the SBP.  He is encouraged to contact the
nearest Retirement Services Officer for more information.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 March 1996; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 28 February 1999.  The applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

SP______  RD______  JM______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  Shirley Powell________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010578                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050913                                |
|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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