RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 August 2006
      DOCKET NUMBER:  AR20050017039


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen Newman               |     |Chairperson          |
|     |Mr. Conrad Meyer                  |     |Member               |
|     |Ms. Yolanda Maldonado             |     |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 military records be
corrected to show that he elected not to participate in the Survivor
Benefit Plan (SBP).

2.  The applicant states that he never signed up for the SBP, that he never
agreed to participate in the SBP, and that he does not believe the Defense
Finance and Accounting Service (DFAS) has any document to support this
claim.

3.  The applicant provides a letter, dated 31 August 2005, from DFAS; three
SBP bills from DFAS; and a letter, dated 10 November 2005, from a Member of
Congress.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error that
occurred on
2 December 2001.  The application submitted in this case is dated 27
October 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 was born on 2 December 1941.  He enlisted in the
Mississippi Army National Guard on 29 June 1959.  He married on 28 August
1964.  The applicant was honorably discharged from the Mississippi Army
National Guard on 17 April 1979 and transferred to the Retired Reserve.

4.  His notification of eligibility for retired pay at age 60 (his 20-year
letter) is not available.  His DD Form 1883 (Survivor Benefit Plan Election
Certificate), dated 13 December 1981, shows he enrolled in the Reserve
Component SBP (RCSBP) for spouse (Geniva) and children coverage, full base
amount, Option C (immediate coverage).

5.  Section IX (Survivor Benefit Plan Election) on the applicant's DD Form
2656 (Data for Payment of Retired Personnel), dated 24 October 2001, shows
he elected not to participate in the [standard] SBP and his wife Geniva
concurred with this election.
6.  The applicant turned age 60 on 2 December 2001.

7.  On 29 June 2006, the applicant’s “spouse” provided a written statement
concurring with his decision to change his SBP coverage from spouse and
children to “I elect not to participate in SBP.”  However, it appears the
applicant signed the concurrence form.  In any case, it is reasonably clear
from the signature that the applicant’s current spouse, presumably Geniva,
did not sign this form.

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.  Elections are made by
category, not by name.

9.  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.  Once a member elects either options B or C in any category of
coverage, that election is irrevocable.  Option B and C participants do not
make a new SBP election at age 60.  They cannot cancel SBP participation or
change options they had in RCSBP, and RCSBP coverage automatically rolls
into SBP coverage.

10.  Public Law 105-85, enacted 18 November 1997, established the option to
terminate SBP participation.  Retirees have a one-year period, beginning on
the second anniversary of the date on which their retired pay started, to
withdraw from SBP.  The spouse's concurrence is required.  No premiums will
be refunded to those who opt to disenroll.  The effective date of
termination is the first day of the first calendar month following the
month in which the election is received by the Secretary concerned.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant’s contentions
that he never signed up for the SBP and that he never agreed to participate
in the SBP.  His DD Form 1883 shows that he enrolled in the RCSBP for
spouse and children coverage on 13 December 1981.  That was an irrevocable
election that rolled over into the standard SBP upon reaching age 60.
2.  There is no evidence of record that shows the applicant terminated his
SBP participation within the given time frame provided by Public Law 105-
85.

3.  Since it does not appear that the applicant’s wife (Geniva) signed the
29 June 2006 spousal concurrence form, and since she has a vested interest
in the SBP, there is insufficient evidence that would warrant granting
relief under Public Law
105-85.  The applicant may apply for reconsideration if he obtains his
spouse’s notarized signature on a concurrence form.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

KN______  _CM___  _YM_____  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.



                            ___Kathleen Newman________
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017039                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060801                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |137.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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