IN THE CASE OF:	  

		BOARD DATE:  18 October 2012

		DOCKET NUMBER:  AR20120000309 


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 participation in the Survivor Benefit Plan (SBP).

2.  The applicant states:

	a.  while a young single Soldier, he was medically discharged from the Army in 1969 without any expectation of being allowed reentry into the military;

	b.  he subsequently married in 1973, was accepted back into the Army as a chaplain in 1984, waived his pension, and completed nearly 26 years total active service and Reserve component service, which should entitle him to participate in the SBP; and

	c.  after retiring in 2008, he was granted SBP coverage on 21 July 2008; but it was immediately denied on 22 July 2008, based on an application he may have signed in 1969.

3.  The applicant provides:

* Self-authored statement
* Facsimile coversheet
* DD Form 2656 (Data for Payment of Retired Personnel)
* two Retiree Account Statements


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 FSM was born on 14 April 1948.  He initially enlisted in the Regular Army, on 26 June 1967, and continued to serve until he was retired by reason of permanent disability on 7 May 1969.  The DD Form 214 he was issued at that time shows he completed 1 year, 10 months, and 12 days of creditable active service.

3.  On 3 June 1972, the applicant married.

4.  On 2 May 1984, the applicant was appointed a Reserve commissioned officer of the Army in the rank of first lieutenant (1LT)/O-2, in the chaplain's branch.  He swore his oath of office on 21 May 1984.

5.  The applicant continuously served in the U.S. Army Reserve (USAR) and in an active duty status as a USAR member during the following periods:

* 10 June 1984 - 19 October 1988
* 12 May 2003 - 10 May 2005
* 13 June 2005 - 12 July 2007
* 13 July 2007 - 14 April 2008

6.  On 25 June 2003, the U.S. Army Reserve Personnel Command, St. Louis, Missouri, issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  It shows the applicant was notified he was entitled to participate in the RCSBP, his sole means of protecting his retired pay, and given 90 days to elect participation in this plan.

7.  On 21 July 2003, the applicant completed a DD Form 2656-5 (Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate).  It shows:

	a.  he elected to participate in the RCSBP for spouse only coverage;

	b.  he elected to provide his spouse an annuity at the full rate under option C indicating immediate coverage after his death regardless of his age; and

	c.  a witness authenticated this document with his signature on 21 July 2003.

8.  On 13 July 2007, he was ordered to active duty in support of Operation Enduring Freedom.  On 4 February 2008, he completed a DD Form 2656 which shows:

   a.  he requested to retire on 14 April 2008 in conjunction with his 60th birthday;
   
   b.  he elected "spouse only" SBP coverage based on his full gross pay; and
   
   c.  he, his spouse, and the witness/notary authenticated this document with their signatures.

9.  On 14 April 2008, he was honorably released from active duty by reason of "completion of required active service" and transferred to his USAR unit.  The DD Form 214 issued at that time shows he completed a total of 14 years, 5 months, and 9 days inactive service and 12 years, 3 months, and 27 days of creditable active duty service.

10.  U.S. Army Human Resources Command, St. Louis Missouri, published Orders Number P03-803668, dated 19 March 2008.  It directed his retirement and placement on the Retired List on 14 April 2008.

11.  He provides two Retiree Account Statements issued on the dates indicated that show:

   a.  21 July 2008 - a premium of $367.75 was deducted from his retired pay for "spouse only" SBP coverage; and
   
   b.  22 July 2008 - "NO SBP ELECTION IS REFLECTED ON YOUR ACCOUNT" and he was reimbursed $367.75.

12.  Public Law 87-381, enacted 4 October 1961, established the Retired Serviceman's Family Protection Plan (RSFPP).  

13.  Public Law 92-425, enacted 21 September 1972, repealed the RSFPP and established the SBP.  The SBP 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.  It declared a 12-month Open Season for those members who retired prior to enactment of the law.  

14.  Public Law 93-155, enacted 16 November 1973, extended the initial SBP Open Season from 12 to 18 months (21 September 1972 – 20 March 1974).

15.  Public Law 97-35, enacted 12 August 1981, established the second Open Season from 1 October 1981 – 30 September 1982.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be allowed participation in the SBP. 

2.  The evidence of record shows that on 7 May 1969, at the time of the applicant's initial permanent disability retirement, he was eligible to provide an annuity to his dependents under the RSFPP; however he was not married and had no dependents eligible to receive this benefit.  Subsequent to this retirement, he married on 3 June 1972.  Three months later in September 1972, Public Law 
92-425 repealed the RSFPP and established the SBP.  Given that the applicant was married, he was now eligible to participate in the SBP.  However, there is no evidence he initiated a request for this coverage.  Subsequent to his marriage and prior to his reentering the Army, two Open Seasons were held, thus allowing him two opportunities to enroll his spouse in the SBP at the full amount.  He did not do so.

3.  The evidence of record also confirms that on 21 May 1984 the applicant was appointed a Reserve commissioned officer and allowed to reenter the USAR.  As a result, his retired pay would have been waived.  Upon reaching 20 years of qualifying service and receiving notification of his eligibility to receive retired pay at age 60 he promptly elected to participate in the RCSBP for "spouse only" immediate coverage.  

4.  The evidence of record confirms that he elected to participate in the SBP for "spouse only" coverage when he initiated his application for retired pay on 4 February 2008.  

5.  Based on the applicant's initial retirement and subsequent marriage, by law he should have elected SBP coverage within one year of the establishment of the SBP in September 1972, or during an available open season.  Based on his military service from 21 May 1984 through 14 April 2008 and his timely RCSBP/SBP elections, it would be appropriate and serve the interest of justice and equity to correct his record to authorize his 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 showing the applicant made a timely election to participate in the SBP for "spouse only" coverage at the full base amount within one year of the September 1972 establishment of the SBP and collecting all back premiums due as a result this correction.




      _______ _   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.

ABCMR Record of Proceedings (cont)                                         AR20120000309



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ABCMR Record of Proceedings (cont)                                         AR20120000309



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