IN THE CASE OF:
BOARD DATE: 2 September 2010
DOCKET NUMBER: AR20100014260
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 that he be permitted to participate in the Survivor Benefit Plan (SBP).
2. The applicant states when he retired in 2000, he elected not to participate in SBP. During the 2005-2006 open season he had decided to participate but was told that he could apply upon completion of his Retired Recall period of service, so he delayed making application. Upon completion of his initial Retired Recall period of active duty he was advised that he did not qualify to participate.
3. The applicant provides an email indicating that he is aware that there is a significant buy-in factor to SBP.
CONSIDERATION OF EVIDENCE:
1. The applicant, a former Regular Army (RA) and Colorado Army National Guard (COARNG) chief warrant officer four (CW4), retired from active duty on
30 April 2000. At that time he elected not to participate in the SBP.
2. The applicant accepted a voluntary recall to active duty and commenced a three year active duty commitment, effective 30 April 2006.
3. Orders A-03-690216A01, issued by the Army Human Resources Command, Alexandria, VA (AHRC-Alexandria), dated 21 November 2007, amended the applicant's orders by reducing his minimum period of service to two years.
4. Orders A-01-800296, issued by AHRC-Alexandria, dated 8 January 2008, recalled the applicant to active duty from the Retired List based on his voluntary recall, effective 1 October 2008.
5. In an email from the applicant, the staff of the Board was advised that the applicant was aware there was a retroactive payment necessary for participation in SBP under the open season should the Board grant relief.
6. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. The surviving spouse and dependent children of a member who dies on active duty after becoming eligible to receive retired pay are automatically entitled to an SBP annuity. The law provided that changes to the elections and options could only be made during Congressionally mandated open seasons.
7. The National Defense Authorization Act (NDAA) for Fiscal Year 2004 expanded certain SBP benefits and included a provision for a one year open season allowing retired service members to take advantage of the revised program.
DISCUSSION AND CONCLUSIONS:
1. The applicant states when he retired in 2000, he elected not to participate in SBP. During the 2005-2006 open season he had decided to participate but he was told that he could apply upon completion of his Retired Recall period of service, so he delayed making application. Upon completion of his initial Retired Recall period of active duty he was advised that he did not qualify to participate.
2. The applicant accepted a voluntary recall to active duty during the most recent SBP open season and has remained on active duty since that time.
3. It is reasonable to accept the applicant's statement that he received incorrect information as to his period of eligibility for participation in the SBP at the time he accepted the voluntary retiree recall during the open season period.
4. The applicant has given the Army an additional five years of honorable active service and should not be penalized for receiving incorrect information as to his eligibility to participate in the SBP. Therefore, as a matter of equity, it is appropriate to correct the record to show that, effective 29 April 2006, he properly applied for participation in the SBP.
BOARD VOTE:
___X____ ____X___ ____X___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
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:
a. showing the applicant completed the necessary documentation to participate in the 2005-2006 SBP Open Season, full spouse coverage, effective 29 April 2006, and
b. showing the Defense Finance and Accounting Service (DFAS) timely received and processed his application.
____________X____________
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.
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