RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 December 2005
      DOCKET NUMBER:  AR20050002871


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Mr. Scott W. Faught               |     |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 dependent listed on his Survivor
Benefit Plan (SBP) Election Certificate be removed.

2.  The applicant states that at the time he was required to complete the
SBP Election Certificate, he was anticipating adopting this child.
However, when he approached the Reserve and Gray area status, he forgot she
was listed.  He never adopted this child, nor does he have any obligation
for her.

3.  The applicant provides a copy of his DD Form 1883 (SBP Election
Certificate) and a notarized statement from the child's mother in support
of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error that
occurred on 24 April 1986, the date he completed his SBP Election
Certificate.  The certificate advises that the service member's decision to
participate in SBP is a permanent irrevocable decision.  The application
submitted in this case is dated 24 February 2005.

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 military records show he was appointed as a Reserve
commissioned officer in the rank of second lieutenant (2LT/0-1) on 27 June
1966, with prior enlisted service, at the age of 22.  His date of birth is
18 September 1943.  The automated personnel data system shows his mandatory
retirement date (MRD) as 26 June 1994.  He was promoted to lieutenant
colonel (LTC/0-5) effective 15 July 1983.

4.  On 30 October 1985, orders were published releasing the applicant from
his troop program unit (TPU) with assignment to the USAR Control Group
(Reinforcement) effective 15 October 1985.

5.  On 6 February 1986, the Army Reserve Personnel Center (ARPERCEN)
notified the applicant that he had completed the required years of service
to be eligible for retired pay on application at age 60 (20-Year Letter).

6.  On 24 April 1986, the applicant completed an SBP Election Certificate
and enrolled in the RCSBP for child only, full base amount, option C
(Immediate Coverage).

7.  The applicant continued to serve until he was released from the USAR
Control Group (Reinforcement) effective 26 November 1993, due to failure to
earn sufficient retirement points.  He was transferred to the Retired
Reserve, in the rank of LTC.

8.  On 18 September 2003, the applicant reached age 60.

9.  The applicant's Statement of Retirement Points shows that he completed
23 years of qualifying service for retirement purposes.

10.  The applicant provides a copy of his DD Form 2656 (Data for Payment of
Retired Personnel), dated 17 February 2004.  The form indicates that the
applicant did not have dependent children, did not elect to participate in
SBP, and did not have eligible children under the SBP.

11.  The applicant provides a copy of a Retired Pay printout, which
consisted of three pages, dated 1 April 2004.  The printout indicates that
SBP cost was being deducted from the applicant's retired pay in the amount
of "$24.27" for child only coverage.

12.  The applicant provides a copy of a short notarized note from the
mother of the child the applicant had identified as his daughter, dated
19 May 2004.  The child's mother stated that her daughter was not, nor had
she ever been, the legal dependent, biologic [sic] or through adoption, of
the applicant.

13.  A memorandum was provided by the Retirement and Annuities Section,
Transition and Separation Branch, AHRC-St. Louis, dated 11 April 2005.  The
memorandum stated that the applicant's SBP Election Certificate was
received by their office on 2 May 1986.  The applicant signed his
application on 24 April 1986.  He elected child only and option C.  This
meant that he elected to provide an immediate annuity beginning on the day
after his date of death, whether before or after age 60.  The child was
8 years old at that time.  The memorandum concluded that the Defense
Finance and Accounting Service (DFAS) in Cleveland would have to be
directed by the Board to remove her name.

14.  The applicant provides a copy of a SBP/RSFPP (Retired Serviceman's
Family Protection Plan) Premium Bill, for the month of September 2005.
This bill indicated that his SBP cost was $24.92.

15.  On 8 November 2005, information from DFAS-Cleveland revealed that the
applicant's first SBP premium was deducted in September 2003.

16.  Public Law 95-397, the RCSBP (Reserve Component SBP), 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.

17.  Title 10, U. S. Code, section 12731(a) states that a person is
entitled, upon application, to retired pay if the person is at least 60
years of age, has performed at least 20 years of qualifying service, and
the last six years of qualifying service have been performed while a member
of a Reserve Component.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant completed an SBP Election
Certificate and enrolled in the RCSBP for child only, full base amount,
option C (Immediate Coverage) on 24 April 1986.  The election certificate
was received by DFAS on 2 May 1986.  At that time, the applicant was
anticipating adopting the child who was listed as his daughter.  He later
retired and forgot that the child was still listed.

2.  The evidence shows that the applicant never adopted this child, and nor
did he have any obligations to her, as evidenced by the notarized note
prepared by the child's mother.

3.  The evidence revealed by DFAS confirmed that the applicant's first SBP
premium was deducted in September 2003 and evidence provided by the
applicant clearly show that premiums were deducted from his retired pay for
a child that he never adopted.


4.  Based on the foregoing evidence provided, it would be fair to remove
the child's name from the applicant's SBP Election Certificate and to
return to the applicant all monies deducted by DFAS from his retired pay
for SBP premiums since September 2003.

BOARD VOTE:

_JDG___  _RTD___  __SWF __  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:

      a.  all Department of the Army records of the individual concerned be
corrected by removing the child's name from the applicant's SBP Election
Certificate and by revising the SBP Election Certificate to show the
applicant declined SBP coverage; and

      b.  DFAS return all monies deducted from the applicant's retired pay
for SBP premiums since September 2003 to the applicant.




                            ____Richard T. Dunbar_____
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002871                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051208                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19931126                                |
|DISCHARGE AUTHORITY     |AR 140-10                               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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