IN THE CASE OF:	  

		BOARD DATE:	  25 September 2014

		DOCKET NUMBER:  AR20140012645 


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:

* documentation placing him on the permanent disability retirement list
* correction of his records to show his spouse is designated as the beneficiary of his Survivor Benefit Plan (SBP) 

2.  The applicant states:

* he was placed on the temporary disability retired list (TDRL) on 31 August 1971 as a result of combat injuries
* he was supposed to be reexamined 18 months later and placed on the permanent retired list
* although the Army records show he was permanently retired, he never received any documentation confirming his permanent retirement
* at the time he retired by reason of disability, he was not married and the SBP did not exist; however, he married on 20 July 1973
* he was never notified of an Open Season and for the last 30 years he thought his spouse would receive a portion of his retired pay

3.  The applicant provides:

* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), ending on 8 October 1969 and 31 August 1971
* Marriage license
* DD Form 4 (Enlistment Contract-Armed Forces of the United States)
* DA Form 71 (Oath of Office-Military Personnel)
* DA Form 261 (Request for Records and Official Statement of Service from the Adjutant General)
* DA Form 66 (Officer Qualification Record)
* DA Form 20 (Enlisted Qualification record)
* DD Form 98 (Armed Forces Security Questionnaire)
* Standard Form 88 (Report of Medical Examination)
* Standard Form 89 (Report of Medical History)
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* DA Form 8-118 (Medical Evaluation Board (MEB) Proceedings)
* Narrative Summary and related medical documents
* Letter Orders Number D8-1471 (TDRL)
* Department of Veterans Affairs (VA) rating decision

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.  Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer of the Army and executed an oath of office with concurrent call to active duty on 9 October 1969.  He held an infantry specialty.

3.  He served in Vietnam from 23 September 1970 to 12 March 1971.  He was wounded in action on 15 February 1971 by small arms fire during combat operations.  He was ultimately evacuated to Walter Reed Army Medical Center. 

4.  On 25 June 1971, an MEB convened and after consideration of clinical records, laboratory findings, and physical examinations, the MEB determined he had the medically unacceptable conditions of cerebral embolism and gunshot wounds to the right arm and back.  The MEB recommended his referral to a PEB. He concurred. 

5.  On 30 June 1971, a PEB convened and found he was physically unfit to perform the duties in his grade and military specialty.  The PEB rated his disabilities at 100 percent for encephalopathy and zero percent for a penetrating gunshot wound.  The PEB recommended a combined rating of 100 percent and placement on the TDRL with reexamination in December 1972.  He concurred. 

6.  Letter Orders Number D8-1471, issued by Headquarters, Department of the Army (HQDA) ordered his retirement by reason disability and placement on the TDRL effective 31 August 1971.  

7.  He retired on 31 August 1971 and he was placed on the TDRL in his retired grade of first lieutenant, in accordance with Title 10, U.S. Code, section 1202, effective 1 September 1971.  

8.  On 15 February 1972, subsequent to a medical examination, a TDRL PEB convened and found he was physically unfit to perform the duties in his grade and military specialty.  The PEB rated his disabilities at 70 percent for encephalopathy and 30 percent for a penetrating gunshot wound.  The PEB recommended a combined physical disability rating of 80 percent and permanent disability retirement.  

9.  Letter Orders Number D4-254, issued by HQDA ordered his removal from the TDRL and permanent retirement by reason of disability in accordance with Title 10, U.S. Code, section 1201, effective in accordance with Title 10, U.S. Code, section 1202, effective 30 April 1973.

10.  He provides a marriage license that shows he and Jeanine were married on 20 July 1973. 

11.  There is no evidence in the FSM’s pay records at DFAS that show he participated in the SBP and/or contributed any premiums toward the SBP.

12.  Public Law 92-425, enacted 21 September 1972, 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. An election, once made, was irrevocable except in certain circumstances.  It declared a 12-month Open Season for those members who retired prior to enactment of the law.

13.  Since establishment of the SBP, Congress has approved various periods of time known as Open Season to give retirees an opportunity to enroll in the SBP.  Each Open Season specified the rules and costs for enrollment in the SBP.  All of these open enrollment seasons were extensively publicized in Army Echoes, the Army bulletin provided to all retirees to ensure retirees were informed of their existence.

	a.  Public Law 97-35, enacted on 12 August 1981, established an open enrollment season for the SBP from 1 October 1981-30 September 1982.  

	b.  Public 101-189, enacted on 29 November 1989, established an open enrollment season from 1 October 1991-30 September 1992 (amended to 1 April 1992- 31 March 1993).  

	c.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999-29 February 2000.  The retiree must have paid monthly premiums starting on the date of enrollment and a one-time, lump sum enrollment premium.  

	d.  Public Law 108-375 established an Open Season that began on 1 October 2005 and lasted 1 year.  Premiums charged were calculated based on the total amount of the premium, plus interest, by which the members’ retired pay would have been reduced if they had elected to participate in the SBP at the first opportunity that they had been afforded.  One-time, buy-in enrollment premiums were due at the time the retiree filed an open enrollment election, although the retiree could elect to defer any portion of the open enrollment premium and have the amount deducted from retired pay in 24 equal monthly installments.

DISCUSSION AND CONCLUSIONS:

1.  With respect to his permanent retirement, on 15 February 1972 a TDRL PEB convened and recommended a combined physical disability rating of 80 percent and placement permanent retirement.  As a result, HQDA published Letter Orders Number D4-254 ordering his removal from the TDRL and permanent retirement by reason disability, effective 30 April 1973.  The applicant was provided with a copy of these orders by separate correspondence.

2.  With respect to the SBP:

	a.  When the applicant retired, he was not married.  However, the SBP was established prior to his marriage.  Public Law 92-425, enacted 21 September 1972, established the SBP.  He and his spouse were married on 20 July 1973.   He had an opportunity to enroll his spouse at the time.  There is no evidence in his pay records at the Defense Finance and Accounting Service (DFAS) that shows he elected to participate in the SBP and/or contributed any premiums toward the SBP.

	b.  He had multiple other opportunities over the years to enroll his spouse in the SBP but there is no evidence he did so or attempted to do so.  The law established five Open Seasons to be conducted since he was married, thus allowing him additional opportunities to enroll in a category in the SBP.  There is no indication he did so or that he made a reasonable inquiry.  There is no error or injustice and thus he is not entitled to the requested relief.  

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.



      _______ _   _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)                                         AR20140012645





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ABCMR Record of Proceedings (cont)                                         AR20140012645



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