RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 December 2007
      DOCKET NUMBER:  AR20070009314


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 record be corrected to show
he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) for
Spouse Only, Full Coverage, Option C (Immediate Coverage) within 1 year of
his
5 October 1986 marriage.

2.  The applicant states, in effect, that upon his marriage on 5 October
1986, he provided his unit administrator with his marriage certificate in
order to update his records.  He claims that at no time was he informed
that it was necessary to make a RCSBP election within a 1 year timeframe.
He states that he has diligently tried to correct this matter directly with
the Defense Finance and Accounting Service (DFAS) and the Massachusetts
Army National Guard (MAARNG) without success.  He states that he is now
terminally ill and justice warrants correction of his record.

3.  The applicant provides the 7 documents listed on the MAARNG Staff Judge
Advocate (SJA) Memorandum submitted with the application in support of his
request.

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.  The applicant's record shows that he was honorably discharged from the
MAARNG on 3 January 2000, and transferred to the Retired Reserve.  The
separation document (NGB Form 22) he was issued at the time shows he held
the rank of master sergeant (MSG) and had completed a total of 35 years of
qualifying service for retired pay.  It also confirms his date of birth is
12 January 1944.

3.  On 18 April 1985, the National Guard Bureau (NGB) published a
Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter)
notifying the applicant that he had completed the required years of service
and would be eligible for retired pay upon application at age 60.

4.  On 3 May 1985, the applicant completed SBP Election Certificate (DD
Form 1883).  In this form, he indicted that he was not married and he
elected Children Only, Full Coverage, Option C (Immediate Coverage) and
listed his daughter, who was 14 years old at the time.

5.  On 5 October 1986, the applicant married his current spouse.

6.  On 31 December 1992, the applicant completed DD Form 1883 in which he
indicated he was married and he elected Spouse Only, Full Coverage, Option
C (Immediate Coverage) and listed his wife, whom he had married on 5
October 1986.

7.  On 1 May 2003, the applicant completed a Data for Payment of Retired
Personnel in conjunction with submitting his application for retired pay at
age 60. In this document, he elected full "Spouse Only" SBP coverage and
listed his current wife as beneficiary.

8.  A Retired Pay Account Statement, dated 1 March 2004, shows the
applicant was receiving retired pay and that a SBP deduction of $4.87 was
being deducted from his retired pay.  The SBP Coverage portion of the
statement indicated that the SBP coverage type was "Children Only", which
was based on his
1985 election.

9.  A statement, along with an overview of the applicant's case, is
provided in support of this application by the MAARNG Retirement
Accountant.  This State retirement official confirms the applicant, who was
not married at the time, elected Children Only, Full Coverage, Option C
(Immediate Coverage).  She indicates that in 1986, he remarried and
reported his marriage and provided all the documents necessary to update
his record to his unit administrator; however, at this time, he was told he
was all set.  She states that no one at any level ever informed the
applicant of the requirement to submit a new RCSBP election within one year
of his marriage.  She further confirms that at that time the MAARNG was not
conducting retirement overview briefings.

10.  The State retirement accountant further states that sometime in 1992,
the applicant's unit command sergeant major (CSM) advised the applicant
that he needed to submit a new DD Form 1883 since he was remarried;
however, again there was no mention of the 1-year submission requirement.
The applicant completed the new DD Form 1883 electing Spouse Only, Full
Coverage, Option C (Immediate Coverage).  She claims that in May 2003, the
applicant completed his application for retired pay at age 60.  In January
2004, the applicant received a Retiree Account Statement showing his RCSBP
designation was Children Only, which is when he first became aware of the
error.  Until that point, the applicant had believed that he had
appropriate designated his wife as the recipient of his SBP annuity.

11.  The State Retirement Accountant further states that over time, the
applicant has attempted to correct this matter, primarily with phone calls
to DFAS customer service, who have advised him his records would be
adjusted.  She states it was not until early 2007, that the 1-year
submission requirement was disclosed to him.  She indicates that she
attempted to make the correction in a letter to DFAS in February 2007, and
after numerous attempts to resolve the matter were unavailing, the
applicant sought the assistance of the Adjutant General's office which
resulted in this application.

12.  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.  A member must make 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.

13.  Title 10, U. S. Code, section 1448(a)(5) provides that a person who is
not married or has no dependent child upon becoming eligible to participate
in the SBP, but who later marries or acquires a dependent child may elect
to participate in the SBP to cover such individuals.  Such an election must
be written, signed by the person making the election, and received by the
Secretary concerned within one year after the date on which that person
marries or acquires that dependent child.

14.  Title 10 of the United States Code, section 11452(a)(1)(B), provides
the legal authority for reduction in retired pay for RCSBP participants.
It states, in pertinent part, that in the case of a participant in the
RCSBP who provided coverage for an eligible beneficiary during a period
before becoming entitled to receive retired pay, the retired pay of the
participant shall be reduced by an amount prescribed under regulations by
the Secretary of Defense to reflect the coverage provided under the Plan
during the period before the participant became entitled to receive retired
pay.

DISCUSSION AND CONCLUSIONS:

1.  By law, a member who is not married upon obtaining eligibility to
participate in the SBP may elect to participate in the SBP to cover such
individuals.  Such an election must be written, signed by the person making
the election, and received by the Secretary concerned within one year after
the date on which that person marries or acquires that dependent child.

2.  The evidence of record confirms that at the time the applicant
completed his SBP election in 1985, he was not married.  It further shows
that he attempted to enroll for "Spouse Only" coverage in 1992, when he
completed a new DD Form 1883 and again in 2003, when he applied for retired
pay.  Given it appears the applicant was not fully advised of his options
and was unaware of the requirement to change his SBP election within 1 year
of his marriage, as confirmed by the statement of the MAARNG Retirement
Accountant, it would be appropriate and serve the interest of equity and
justice to provide the requested relief.

3.  In view of the facts of this case, it would be appropriate to correct
the applicant's record to show he completed and submitted his SBP Election
(DD Form 1883) for Spouse and Children, Full Coverage, Option C (Immediate
Coverage), effective 5 October 1986, the date of his marriage.  This will
require the applicant to pay all retroactive SBP premiums due from the
effective date of his election.

BOARD VOTE:

__KAN__  __RML __  __EEM__  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for relief.  As a result, the Board recommends
that all Department of the Army records of the individual concerned be
corrected by showing he elected Spouse and Children, Full Coverage, Option
C (Immediate Coverage) on 5 October 1986, the date of his marriage; and
that this is the SBP election currently in effect.

2.  In connection with this correction, the individual concerned will be
required to provide all retroactive SBP premiums due as a result.




                                  _____Kathleen A. Newman  _
                                             CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070009314                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/12/06                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |137.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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