RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 November 2007
	DOCKET NUMBER:  AR20070006749 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Ms. Jeanette R. McCants

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 correction of his military records to show that he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) within 90 days of when he received his notification of eligibility for retired pay at age 60. 

2.  The applicant states that he was serving in Bosnia Herzegovina when his notice of eligibility for retired pay at age 60 arrived at his home.  His wife told him that it had arrived but did not mention the 90 day requirement for enrollment in RCSBP.  Therefore, he missed the 90 day deadline for enrolling.  He further states that he did not know he missed the deadline until 21 April 2007, when his orderly room personnel asked him if he needed to make this election.  However, since he missed the 90 day deadline, an election could not now be made.  The applicant states that the first time he read the paragraph about the 90 day requirement to file was in July 2007.  He contends that he was not given any counseling so that he could have made an informed decision.  Since it is now automatic for Soldiers to be enrolled in RCSBP unless they decline, the applicant requests that his election to participate be granted.  

3.  The applicant provides a copy of his Notification of Eligibility for Retired Pay at Age 60, dated 1 July 1999.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  At the time of his application, the applicant was actively serving in the Nebraska Army National Guard in the rank of major, pay grade O-4.


3.  On 1 July 1999, the United States Army Reserve Personnel Command, St. Louis, Missouri, informed the applicant by memorandum of his eligibility for retired pay at age 60.  The memorandum also informed him that he had 90 calendar days from the date of the memorandum to submit his RCSBP Election Certificate.  It further informed him that if he did not submit an election within the 90 day period he would not be eligible for RCSBP coverage until he applied for retired pay at age 60.  It also informed him that should he die prior to attaining age 60, his survivors would not be entitled to RCSBP benefits.   

4.  Records show that the applicant will attain the age of 60 in the year 2018.

5.  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; or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.  

6.  The law required that a member must have made the election within 90 days of receiving the 20-year letter or else wait until he/she applied for retired pay and elected to participate in the standard SBP.  In other words, failure to elect an option resulted in the default election of option A.  This law was later amended to change the default to automatic enrollment in the program if an election was not submitted. 

7.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 through 29 February 2000.  Extensive publicity was given in 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. 

8.  The National Defense Authorization Act for Fiscal Year 2005 established an SBP Open Enrollment period to be conducted 1 October 2005 to 30 September 2006.  Extensive publicity was given in Army Echoes, the authorized 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.  The retiree must have paid 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.  
DISCUSSION AND CONCLUSIONS:

1.  The evidence clearly shows that the applicant was provided proper notification of his eligibility for retired pay and that he had only 90 calendar days in which to submit his election to participate in RCSBP.  He acknowledges that his wife received the notification and so informed him.  He further acknowledges that he did not read the notification until July 2007, about 8 years after receipt.  

2.  While the applicant’s failure to make an RCSBP election is unfortunate, his reasons for this failure are not sufficient to overcome the law in effect at the time. 

3.  The subsequent change in the law to provide for an automatic enrollment for members who fail to make an election does not apply to the applicant.

4.  The applicant has the option of enrolling in RCSBP when he applies for retired pay at age 60.  Should an open season be announced at an earlier date, he may opt to enroll during that time.

5.  In view of the above, the applicant’s request should not be granted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JTM___  __JRM __  __SWF _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




__      John T. Meixell________
          CHAIRPERSON


INDEX

CASE ID
AR20070006749
SUFFIX

RECON
 
DATE BOARDED
20071129 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
137.0100
2.

3.

4.

5.

6.