IN THE CASE OF:
BOARD DATE: 17 SEPTEMBER 2008
DOCKET NUMBER: AR20080010192
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, in effect, that her records be corrected to show she elected to participate in the Survivor Benefit Plan (SBP) coverage for dependent children.
2. The applicant states her son was born on 8 March 1992 prior to her retirement from the Army and she elected to participate in SBP.
3. The applicant did not provide additional documentary evidence in support of this application.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant retired from the Regular Army on 30 November 1993. On
22 September 1993, she executed a DA Form 4240 (Data for Payment of Retired Army Personnel). Part V (SBP Election) shows she declined to participate in the SBP. This form also shows that she had a dependent son born on 8 March 1992.
3. 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.
4. Title 10, U.S. Code, section 1447(11) defines "dependent child" as a person who is (1) unmarried; and (2) who is under 18 years of age, or at least 18 but under 22 years of age and pursuing a full-time course of study in high school, college, or comparable recognized educational institution, or is incapable of self- support because of a mental or physical incapacity existing before the person's 18th birthday or incurred on or after the 18th birthday but before the 22nd birthday while pursuing a full time course of study or training; and (3), who is the child or a person to whom the Plan applies, including an adopted child, a step or foster child, or a recognized natural child who lived with that person in a regular parent-child relationship.
DISCUSSION AND CONCLUSIONS:
1. The applicant retired on 30 November 1993. Although she had a dependent child at the time of her retirement, she elected not to participate in the SBP.
2. There is no evidence that the applicant has had any SBP premiums deducted from her retirement pay.
3. Given the above, there is no basis upon which to grant the applicant's request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__XXX __ __XXX__ __XXX__ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
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.
___ XXX ___
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20080010192
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ABCMR Record of Proceedings (cont) AR20080010192
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