RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           2 November 2004
      DOCKET NUMBER:  AR2004101956


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Mr. Robert L. Duecaster           |     |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 original Survivor Benefit
Plan (SBP) paperwork be processed and his record be corrected to show he
elected full spouse only coverage upon his non-regular retirement.

2.  The applicant states, in effect, that the original paperwork he
submitted for SBP coverage when he applied for retired pay in 1993 was
never processed.  He further indicates that in this paperwork, he elected
full spouse only SBP coverage and that his retirement file at St. Louis
shows no SBP election.

3.  The applicant provides the following documents in support of his
application:  Survivor Benefit Plan Election Certificate (DD Form 1883),
Application for Retired Pay Benefits (DD Form 108), Data for Payment of
Retired Army Personnel (DA Form 4240), Direct Deposit Sign-Up Form and Army
National Guard (ARNG) Discharge Orders (Orders 195-13).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged error or injustice
which occurred on 28 November 1993.  The application submitted in this case
is dated 29 December 2003.

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 limitation 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 that on 4 October 1993, the applicant was
issued a Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year
Letter) by the Office of The Adjutant General (OTAG), Commonwealth of
Massachusetts.  This letter confirms the applicant completed the required
years of service and would be eligible for retired pay upon application at
age 60.  The record shows the applicant’s date of birth was 28 November
1933.
4.  The applicant’s Military Personnel Records Jacket (MPRJ) contains a
copy of a DD Form 1883 the applicant completed on 12 October 1993 in
conjunction with his application for non-regular retired pay at Age 60.  In
Section II (Marital, Dependency and Election Status) of this document, the
applicant elected Option C (Immediate Coverage), Full Spouse Only SBP
coverage.

5.  The applicant’s MPRJ also contains a Reserve Component (RC)
Supplemental SBP Election Certificate (DARP Form 3856), in which the
applicant declined RC Supplemental SBP coverage.

6.  On 13 October 1993, the applicant submitted his application for retired
pay benefits to the Army Reserve Personnel Center (ARPERCEN), St. Louis,
Missouri.  Included with his application for retired pay was a copy of a DA
Form 4240 he completed on 13 October 1993.  In Part V (SBP Election) of
this document, the applicant elected spouse only full coverage.  He also
included a copy of the DD Form 1883 he completed on 12 October 1993 with
his retirement application packet.

7.  In connection with the processing of this case, a member of the Board
staff contacted the applicant to clarify the reason for his electing Option
C (Immediate Coverage) instead of Option B (Age 60) SBP coverage given his
SBP election was made in conjunction with his application for non-regular
retired pay at age 60.  The applicant indicated that he elected Option C
because he was advised to do so by administrative personnel who assisted
him in processing his application for retired pay application packet.  He
further indicated that had he been properly informed of the various
options, he would have elected Option B at the time since he was in fact
making the SBP election in connection with applying for retired pay at age
60.

8.  Orders Number 195-13, dated 28 October 1993, issued by OTAG,
Commonwealth of Massachusetts, directed the applicant’s discharge from the
ARNG on 27 November 1993.
9.  Public Law 95-397, the Reserve Component Survivor Benefit Plan (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.

10.  Title 10 of the United States Code, section 12731 provides the age and
service requirements for entitlement to non-regular retired pay.  It
states, in pertinent part, that a member who has completed at least 20
years of qualifying service is eligible to receive retired pay at age 60
upon application.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he elected Full, Spouse Only SBP
coverage upon applying for retirement at age 60, but his election paperwork
was not properly processed was carefully considered and found to have
merit.  The evidence of record contains a SBP Election Certificate and a DA
Form 4240, which both confirm the applicant elected Full, Spouse Only, SBP
coverage in conjunction with his application for retired pay.

2.  In view of the facts of this case, it would be appropriate to correct
the applicant’s record to show he applied for retired pay at age 60 and
elected full SBP spouse only coverage, Option B, in conjunction with this
request.  Further, the record should be corrected to show that his retired
pay application and SBP election were approved and effective on his 60th
birthday, 28 November 1993.

3.  The SBP is funded by the election premiums of those who are
participating in the program.  Although relief is warranted in this case in
the interest of justice, it is also appropriate, in the interest of those
who bear the cost of the program, that the applicant pay all SBP premiums
due for the period of his enrollment from
28 November 1993 through the present.

BOARD VOTE:

_MKP___  _JRS____  _RLD___  GRANT RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 enrolled in the
Survivor Benefit Plan and elected Full, Spouse Only, Option B (Age 60)
coverage effective 28 November 1993.

2.  That the Defense Finance and Accounting Service collect all Survivor
Benefit Plan premiums due since the effective date of his enrollment in the
program,
28 November 1993.




            _MARGARET K. PATTERSON_
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004101956                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/10/DD                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1993/11/27                              |
|DISCHARGE AUTHORITY     |NGR 600-200                             |
|DISCHARGE REASON        |Trns to Ret Res                         |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |137.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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