RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           18 November 2004
      DOCKET NUMBER:  AR2004106024


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James C. Hise                 |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Mr. Hubert O. Fry                 |     |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 that his records be corrected to show he elected
to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for
spouse coverage.

2.  The applicant states that he did not receive a DD Form 1883 (Survivor
Benefit Plan – Election Certificate) when he received his 20-year letter.

3.  The applicant provides his 20-year letter.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on or about 20 July 2000.  The application submitted in this
case is dated 26 March 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 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 service fiche is not available.  He was born on 4 July
1954.  After having had prior service, he enlisted in the U. S. Army
Reserve around 1982.  He was promoted to Sergeant First Class, E-7 on 15
May 1993 in military occupational specialty 75Z (Personnel Senior
Sergeant).

4.  The applicant's 20-year letter (his notification of eligibility for
retired pay at  age 60) is dated 20 July 2000.  Paragraph 4 of this letter
informed him, "You    are entitled to participate in the Reserve Component
Survivor Benefit Plan     (RC-SBP)…By law, you have only 90 calendar days
from the date you receive this memo (emphasis in the original) to submit
your DD Form 1883…If you do not submit your election within 90 calendar
days, you will not be entitled to survivor benefit coverage until you apply
for retired pay at age 60…Enclosed is DD Form 1883 and more detailed
information about RC-SBP."

5.  The applicant states on his application that the date of discovery of
the alleged error or injustice was 26 March 2004.

6.  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.  Before the law was amended as noted below, a member must have made 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.  In other words, failure
to elect an option resulted in the default election of option A.

7.  Public Law 106-398, enacted 30 October 2000, required written spousal
consent for a Reserve service member to be able to delay making an RCSBP
election until age 60.  The law is applicable to cases where 20-year
letters have been issued after 1 January 2001.  In other words, failure to
elect an option now results in the default election of option C.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was a senior noncommissioned officer
and a Senior Personnel Sergeant.  He should have known that if he did not
receive the enclosures listed in the body of his 20-year letter he could
have called the office that issued the letter to obtain the enclosures if
he could not obtain them elsewhere.

2.  The applicant has failed to provide a sufficient explanation as to why
4 years passed before he discovered the enclosures to his 20-year letter
were missing.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on or about 20 July 2000; therefore, the
time for the applicant to file a request for correction of any error or
injustice expired on or about 19 July 2003.  However, 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

__jch___  __le____  __hof______  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.




            __James C. Hise____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004106024                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041118                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |137.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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