BOARD DATE:	  20 October 2009

		DOCKET NUMBER:  AR20090006944 


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 his Survivor Benefit Plan (SBP) premiums be stopped. 

2.  The applicant states, in effect, that he retired on 1 December 1976 but SBP documentation erroneously indicates that he retired on 21 September 1972 and that he declined the SBP at that time.  He indicates that he enrolled in the SBP for spouse coverage in 1976 when he retired and that he has paid premiums for the past 33 years.  He also states that he did not elect SBP during an Open Season in 1982.  

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty); retirement orders; SBP documentation; two letters, dated 2 October 2008 and 25 February 2009, from the Defense Finance and Accounting Service (DFAS); and an SBP attachment in support of his 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 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 was born on 18 May 1937.  Having prior active service in the Regular Army and inactive service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 4 August 1959.  

3.  The applicant's DA Form 4240 (Data for Payment of Retired Army Personnel), dated 28 October 1976, shows he elected "None" in item 11 (Check one of the following to indicate the type of coverage you desire) in Part II (Survivor Benefit Plan Election).  

4.  On 30 November 1976, the applicant retired in the rank of staff sergeant.  

5.  In support of his claim, the applicant provided SBP documentation which shows, in pertinent part, that he declined SBP on 21 September 1972 and that he elected spouse coverage on 8 February 1982.  

6.  The applicant provided a letter, dated 2 October 2008, from DFAS in response to his inquiry regarding the Paid-up provision of the SBP.  The letter states, in pertinent part, that he had paid into the plan for 316 months.     

7.  The applicant also provided a letter, dated 25 February 2009, from DFAS in response to his inquiry regarding the Paid-up provision of the SBP.  The letter states, in pertinent part, that he did not currently qualify for Paid-up SBP and that he had paid into the plan for 323 months.  In addition, it states that he elected SBP during the 1982 Open Season and his SBP premium deduction did not commence until that time. 

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.  

9.  Public Law 105-261, enacted 17 October 1998, established paid-up coverage under the SBP.  Effective 1 October 2008, no reduction may be made in the retired pay of a participant in the SBP for any month after the later of:  (1) the 
360th month for which the participant’s retired pay is reduced; or (2) the month during which the participant attains age 70.

10.  Public Law 97-35, enacted 12 August 1981, established the second Open Season from 1 October 1981 – 30 September 1982.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible an annuity.

DISCUSSION AND CONCLUSIONS:

1.  It is noted that the SBP documentation provided by the applicant erroneously shows he declined SBP on 21 September 1972 since he did not retire until 
30 November 1976.

2.  Although the applicant contends that he requested SBP for his spouse when he retired, there is no evidence of record, and the applicant provided no evidence, which shows he enrolled in the SBP for spouse coverage in 1976.  His DA Form 4240 shows he declined SBP on 28 October 1976. 

3.  DFAS records show the applicant enrolled in the SBP in 1982 during an Open Season and that his SBP premium deduction did not commence until that time.  The governing regulation states that no reduction may be made in the retired pay of a participant in the SBP for any month after the 360th month for which the participant’s retired pay is reduced or the month during which the participant attains age 70, whichever occurs later.  As of February 2009, the applicant did not qualify for Paid-up SBP since he had only paid into the plan for 323 months according to DFAS records.  It appears the applicant will qualify for paid-up coverage under the SBP in 2012.  Therefore, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  __x_____  __x______  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.




      _______ _   _______   ___
               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)                                         AR20090006944





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090006944



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1