RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           5 April 2005
      DOCKET NUMBER:  AR20050002810


      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. Mark D. Manning               |     |Chairperson          |
|     |Mr. Thomas E. O'Shaughnessy       |     |Member               |
|     |Ms. Jeanette R. 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 that his records be corrected to show he
enrolled in the Survivor Benefit Plan (SBP) during the 2000 Open Season.

2.  The applicant states that he requested the SBP at Bolling Air Force
Base in January 2000.

3.  The applicant provides a letter from the Defense Finance and Accounting
Service (DFAS) dated 6 January 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred in January 2000.  The application submitted in this case is
dated         30 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 11 September 1929.  After having had prior
service in the Regular Army, the U. S. Army Reserve, and the Army National
Guard (ARNG), he enlisted in the Army National Guard on 7 December 1974.

4.  The applicant's notification of eligibility for retired pay at age 60
(his 20-year letter) is not available.  Records at DFAS show he was married
but declined the SBP when he was retired (for physical disability) in
August 1984 and that he divorced in October 1984.

5.  Records at DFAS show the applicant remarried on 15 August 1999 and
requested SBP, spouse coverage on 14 October 1999.  The request apparently
did not refer to the Open Season then in effect and was not made on the
required form.

6.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The
SBP provided that military members could elect to have their retired pay
reduced to provide for an annuity after death to surviving dependents.  An
election, once made, is irrevocable except under certain circumstances as
prescribed by law.

7.  Public Law 105-261, enacted 17 October 1998, established an Open Season
to be conducted 1 March 1999 through 29 February 2000.  The retiree must
have paid monthly premiums starting on the date of enrollment and a one-
time, lump sum enrollment premium.  Army Echoes, the Army bulletin
published and mailed to retirees to keep them abreast of their rights and
privileges and to inform them of developments in the Army, warned that for
a retiree with a high number of years since first being able to enroll a
beneficiary in the SBP and whose retired pay was fairly high, the
enrollment premium alone could exceed $50,000.

8.  The National Defense Authorization Act for Fiscal Year 2005 establishes
an Open Season to be conducted 1 October 2005 to 30 September 2006.  It
requires that enrollees live two years from the effective date of election
for beneficiaries to be eligible for an annuity.  The retiree must pay
monthly premiums starting on the date of enrollment and a buy-in premium
covering all the costs that would have been paid for the election if it had
been made at the first opportunity to do so.  As of January 2005, the costs
associated with the buy-in premium had not yet been determined.

9.  Information obtained from DFAS on 28 February 2005 indicated that,
during the 1 March 1999 through 29 February 2000 Open Season, they required
members to request SBP enrollment on a specified form because the form
would confirm the member was willing to pay the enrollment premium.

10.  On 28 February 2005, the Board analyst requested that the applicant
indicate his acknowledgement of the cost of correcting his records to show
he enrolled in the SBP during the 1 March 1999 through 29 February 2000
Open Season and that he still desired to have his records corrected.  He
did not respond within the given time frame.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows that the applicant was married when he retired
for physical disability in August 1984 and that he declined to participate
in the SBP at that time.  His election to decline to participate was an
irrevocable election except under circumstances prescribed by law.

2.  The applicant remarried in August 1999, during an Open Season which
allowed him to change his 1984 election not to participate in the SBP.
Records at DFAS show he attempted to enroll in the SBP at that time.
However, DFAS did not act upon his request because he failed to make it
using the correct form but, more importantly, because he failed to indicate
his acknowledgement that he would be required to pay a one-time enrollment
premium.

3.  The applicant failed to respond to a request from the Board analyst for
the same acknowledgement of the costs of enrolling in the SBP under the 1
March 1999 through 28 February 2000 enrollment criteria and whether he
still desired to do so.  It is noted that while enrollment could cost up to
$50,000, considering the fact the applicant divorced 3 months after he
retired (at which time SBP spouse costs would have been suspended) and did
not remarry until August 1999 (unless he had a marriage between those
times), his actual costs could be much less.

4.  The applicant could also consider enrolling in the SBP during the
upcoming Open Season beginning on 1 October 2005.  He is urged to discuss
his options with his nearest Retirement Services Officer.

5.  At this time, there is insufficient evidence on which to grant his
request.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration around January 2000; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired around January 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

__mdm___  __teo___  __jrm___  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.




            __Mark D. Manning_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050002810                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050405                                |
|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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