RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         4 October 2005
      DOCKET NUMBER:  AR20040011338


      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. Yvonne Foskey                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Mr. Larry C. Bergquist            |     |Member               |
|     |Ms. Carmen Duncan                 |     |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 to change his Survivor Benefit Plan (SBP)
Election Certificate to show his current spouse as the beneficiary.

2.  The applicant states, in effect, he would like to change his SBP
Election Certificate (DD Form 1883) to change his “Insurable Interest”
election that provides protection for his sister to a “Spouse Only”
election, which would protect his current spouse.  He further states that
after reading the September 2003, Army Echoes Bulletin published for
retired Army Personnel he discovered that he was responsible for updating
his retired pay file within one year of marriage or remarriage and that he
needed to make or update his SBP election on the DD Form 1883.

3.  The applicant provides the following documents in support of his
application:  DD Form 1883; Marriage License; and Self-Authored Letter.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 29 May 1994.  The application submitted in this case is
dated
10 December 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's record shows he served in an enlisted status in the
United States Army Reserve (USAR) from 2 September 1969 until 29 July 1972.
 On
30 July 1972, he was appointed a second lieutenant and continued to serve
in the USAR in an officer status until being transferred to the Retired
Reserve on
1 August 2000.

4.  On 23 May 1990, the applicant received his Notification of Eligibility
for Retired Pay at Age 60 (Twenty-Year) letter.  This letter informed him
that he must complete his initial SBP Election Certificate within 90
calendar days from the date of receipt of his Notification of Eligibility
for Retired Pay.

5.  On 25 September 1990, the applicant completed his SBP Election
Certificate, DD Form 1883, and elected “Natural Person with Insurable
Interest" coverage for his sister under Option C (Immediate Coverage).

6.  On 29 May 1994, the applicant married his current spouse.

7.  On 15 February 2005, a Retirement Services Coordinator from the United
States Army Human Resource Command (HRC)-St. Louis replied to the
applicant's RCSBP coverage inquiry.  This official stated that the
applicant had contacted the Center on several occasions since March 2001
concerning his DD Form 1883 election and was advised he had failed to
submit the change in his marital status within one year from the date of
marriage.  As a result, HRC no longer had the authority to make such a
change.

8.  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.  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 RCSBP 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
except as provided for by law.  Option B and C participants do not make a
new SBP election at age 60.

9.  Title 10, U.S. Code, section 1448(a)(1) provides that a member who was
not married and had no dependent child upon becoming eligible to
participate in the SBP and therefore elected an insurable interest
beneficiary, can terminate SBP coverage for such a beneficiary at anytime.
A member in this situation is then permitted to elect a spouse (who he or
she married after retirement) as his or her SBP beneficiary, but this
election must be made within one year of marriage.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and it is reasonable to
presume that had he been aware that it was his responsibility to update his
retired pay file within one year of marriage/remarriage he would have done
so in a timely manner.

2.  By law, a member may terminate an insurable interest SBP election to
terminate that election at anytime, and is permitted to elect spouse
coverage if married subsequent to retirement.  This spouse election should
be made within in 1 year of the marriage.  The evidence of record confirms
the applicant married his current spouse on 29 May 1994; however, he was
unaware he had to make his spouse SBP election within one year of the
marriage.

3.  In view of the facts of this case, it would be appropriate and serve
the interest of equity to correct his record to show he terminated SBP
coverage for his sister under the insurable interest election, and elected
spouse coverage within one year of his marriage to his current wife on the
date of his marriage, 29 May 1994.

BOARD VOTE:

__MDM__  __LCB __  __CM___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief and to excuse failure to timely file.  As a
result, the Board recommends that all Department of the Army records of the
individual concerned be corrected by showing he terminated insurable
interest SBP coverage for his sister, and elected spouse SBP coverage for
his current wife on 30 May 1994, the day after his marriage.




                                  _____Mark D. Manning____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040011338                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-10-04                              |
|TYPE OF DISCHARGE       |HD,                                     |
|DATE OF DISCHARGE       |2000/08/01                              |
|DISCHARGE AUTHORITY     |AR140-10 . . . . .                      |
|DISCHARGE REASON        |Retired Reserve                         |
|BOARD DECISION          |Grant                                   |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |137                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]