DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
 
Application for Correction of  
Coast Guard Record of: 
 
 
XXXXXXXXXXXXXXXXXXX 
XXXXXXXXXXXXXXXXXXX 
 
 

BCMR Docket  
No. 2002-058 
 

FINAL DECISION 

This  final  decision,  dated  November  XX,  2002,  is  signed  by  the  three  duly 

 
 
This is a proceeding under section 1552 of title 10 and section 425 of title 14 of the 
United States Code.  It was docketed on February 12, 2002, upon the Board's receipt of a 
complete application for the correction of the applicant's military record. 
 
 
appointed members who were designated to serve as the Board in this case.   
 
 
The applicant's widow filed this application asking that a correction be made in 
the applicant's military record.  The applicant had been an officer in the Coast Guard, 
until  he  retired  on  October  1,  1983,  after  approximately  22  years  on  active  duty.    He 
died on May 24, 1994.   
 
 
The  applicant's  widow  asked  the  Board  to  correct  his  record  to  show  that  he 
changed the beneficiary under his survivor benefit plan (SBP) from his minor child to 
his widow during the open enrollment period from April 1, 1992 until March 31, 1993.  
 
 
On September 12, 1983 prior to retirement, the applicant signed a SBP certificate 
electing coverage for his minor child from a previous marriage but not for his widow.  
According  to  his  widow,  he  was  required  to  provide  coverage  for  the  minor  child 
pursuant to a divorce judgment until the child reached majority or graduated from high 
school.  The record indicates that the minor child was born on June 17, 1974.   
 
 
Sometime in 1992, the applicant developed cancer and died approximately two 
years later.  The applicant's widow stated that she contacted the Coast Guard pay center 
(now  Human  Resource  Service  and  Information  Center  (HRSIC))  about  changing  the 
applicant's SBP coverage from his minor child to her.  She stated that HRSIC informed 
her that a change could not be made because the open season had closed two months 
earlier.  HRSIC gave the applicant the same information when he inquired.  She stated 
that the applicant wrote a letter in May 1994 requesting that HRSIC make a hardship 
exception in his case.   

 
 
Subsequent to the applicant's death, his widow wrote a letter dated September 
21, 1994 to a United States Senator.  She asked for his assistance in having her listed as 
the beneficiary on the applicant's SBP.  She indicated that she received no reply to this 
letter. 
 
 
In  another  letter  to  a  different  United  States  Senator,  dated  May  15,  2001,  the 
applicant's widow stated that the announcement about the open enrollment period was 
published  in  the  Commandant's  Bulletins.    She  stated  that  the  applicant  was  too  ill 
between cancer treatments to read or absorb anything and she was too busy taking care 
of  him  and  reviewing  insurance  paperwork  to  read  anything  else  except  the  drug 
interaction sheets.   
 
 
In this letter, the applicant's widow stated that she and the applicant should have 
been informed by first class mail about the open enrollment season.  In comparison, she 
stated  that,  "[a  federal  Credit  Union]  sent  [her]  three  separate  first  class  mailing  with 
return postcards trying to sell [her] a $1000 accident policy.  How much more important 
is a pension for almost 23 years of military service - they could not have sent ONE first 
class letter that would have been opened and read." 
 
 
On July 24, 2001, a Coast Guard Commander responded to the Senator's letter. 
He  stated  that  the  applicant's  widow  contacted  the  Human  Resource  Service 
Information  Center  (HRSIC)  on  May  26,  1993.    She  was  informed  by  HRSIC  that  the 
applicant's SBP election could only be changed during an open enrollment period.  He 
verified  that  the  open  enrollment  period  had  ended  on  March  31,  1993.    He  further 
stated  that  the  SBP  open  season  period  was  announced  several  times  in  the  Retiree 
Newsletter.  The Commander further stated as follows: 
 

On May 31, 1994, HRSIC received a letter from the applicant dated May 
14, 1994.  In this letter he requested that HRSIC accept his late enrollment 
into  SBP  on  a  hardship  basis.    While  HRSIC  was  responding  to  [the 
applicant's]  request,  HRSIC  was  informed  that  the  [the  applicant]  had 
died on May 24, 1994 and all action was stopped on the request.  If HRSIC 
had been able to accept [the applicant's] request, the [applicant's widow] 
would still have ended up with no SBP benefits.  Federal Law would have 
required  [the  applicant]  to  remain  alive  for  two  years  in  order  for  [the 
applicant's widow] to be eligible for benefits. 

 
Views of the Coast Guard 
 
 
Counsel of the Coast Guard.  He recommended that the Board deny relief in this case.   
 
 

On September 25, 2002, the Board received an advisory opinion from the Chief 

With  respect  to  notification,  the  Chief  Counsel  stated  that  the  Coast  Guard 

notified  all  its  retirees  about  the  "open  enrollment"  period  through  the  Coast  Guard 
Retiree Newsletter.  He stated that the Coast Guard was under no regulatory obligation 
to use any other means of notification. 
 
 
The  Chief  Counsel  stated  that  the  applicant's  widow  failed  to  demonstrate  an 
error in the Coast Guard's refusal to change the applicant's beneficiary under the SBP 
program  from  his  daughter  to  the  widow.    He  stated  that  the  Article  18-F-6a.  of  the 
Personnel Manual provides that : 
 

Any election not to participate or to participate at a reduced base amount, 
if not rescinded or changed prior to the first date of entitlement to retired 
pay, is irrevocable.  Therefore if coverage is declined for a spouse at the 
time  of  retirement,  this  decision  is  irrevocable  and  coverage  for  that 
spouse cannot be provided at any later point in time.  Consequently, any 
decision not to participate or to participate at a reduced amount should be 
reviewed very carefully.   

 
The Chief Counsel stated that the applicant did not exercise his option to change 
 
his SBP beneficiary during the open season.  He stated that any change made during the 
open enrollment (from April 1, 1992 to Marcy 31, 1993) would not have taken effect for 
two years from the date of the change.  He stated that according to Article 430901.D of 
Volume  B  of  the  Department  of  Defense  Financial  Management  Regulation  provides 
that  "an  annuity  is  not  payable  under  the  open  enrollment  election  for  a  period  of  2 
years.  Further, the Chief Counsel argued that that the rules governing the change of an 
election for SBP do not permit retroactive action.   
 
Applicant's Reply to the Views of the Coast Guard 
 
 
The  applicant  stated  that  she  understood  that  she  was  not  designated  as  a 
beneficiary  when  the  applicant  retired.    Her  complaint  is  with  the  "open  season  only 
being advertised in the Retiree Newsletter."  She queried whether retirees were worth 
one first class stamp.  She claimed that if she had been notified by first class mail she 
would have read it and acted accordingly.  She stated that a rule or regulation should be 
in  effect  to  make  sure  the  services  are  available  to  all  persons  eligible.    She  further 
opined that to "enforce the letter of a regulation with no compassion or concern for the 
intent of the regulation does a disservice to everyone.   
 

FINDINGS AND CONCLUSIONS 

 

 
 
basis of the submissions of the parties: 
 
 

The  Board  makes  the  following  findings  of  fact  and  conclusions  of  law  on  the 

1. The application was not submitted within three years of the alleged error or 

injustice, as required by section 1552 of title 10, United States Code. It is not timely. 
 
 
2.    To  be  timely,  an  application  for  correction  of  a  military  record  must  be 
submitted within three years after the applicant discovered or should have discovered 
the alleged error or injustice.  See 33 CFR 52.22.  
 
 
3.  The Board may still consider the application on the merits, however, if it finds 
it is in the interest of justice to do so.  The interest of justice is determined by taking into 
consideration the reasons for and the length of the delay and the likelihood of success 
on the merits of the claim. See  Dickson v. Secretary of Defense, 68 F. 3rd 1396 (D.D.C. 
1995). 
 
 
4.    The  applicant's  widow  did  not  indicate  the  date  she  discovered  the  alleged 
error.    However,  based  on  the  evidence  of  record,  she  should  have  discovered  the 
alleged error or injustice in 1994 (the last time she and the applicant were told by HRSIC 
that the applicant could not change his SBP election.).  She stated that they learned in 
May 1993 that the SBP open enrollment period had closed on March 31, 1993 and the 
applicant  could  not  make  a  change  to  his  SBP  election  at  that  time  because  the  open 
enrollment period had closed.  The applicant last contacted HRSIC in May 1994 about 
changing his SBP election but was told he could not do so.  Subsequently, he submitted 
a  request  to  HRSIC  requesting  a  change  in  his  SBP  election  due  to  hardship.    Before 
HRSIC could reply, the applicant died on May 24. 1994.  
 
 
5.  After the applicant passed away, his widow wrote a letter to a U.S. Senator 
dated  September  21,  1994  asking  for  help  in  having  her  listed  as  the  applicant's  SBP 
beneficiary,  to  which  she  did  not  receive  a  reply.    The  record  indicates  that  the 
applicant's  widow  took  no  further  action  in this matter until May 15, 2001, when she 
wrote  another  letter  to  a  different  senator  asking  for assistance. The only explanation 
given  by  the  applicant's  widow  for  not  taking  any  action  from  September  1994  until 
May 15, 2001 was emotional and physical exhaustion.  She finally filed an application 
with  the  Board  on  February  12,  2002.    Approximately  one  year  elapsed  between  the 
date of her May 15, 2001 letter to the second Senator and February 12, 2002, the date she 
filed her application with the Board.  The Board finds that the applicant has submitted 
insufficient evidence showing that she could not or should not have acted sooner in this 
case.   
 
 
6.  The Board finds that it is not likely that the applicant's widow would prevail 
on the merits of this claim, even if the Board were to waive the statute of limitations.  
Although she complained about the method in which retirees were notified about the 
open  enrollment  period,  she  has  not  provided  any  evidence  that  any  other  type  of 
notification was required either by law or regulation.  Also, she has not stated that she 
and the applicant failed to receive the Retirees Newsletters, but only that they failed to 
read them due to their extenuating circumstances.  She has failed to establish an error or 

injustice  with  respect  to the manner in which the Coast Guard notified retirees about 
the SBP open enrollment period.   
 
7.  According to the Personnel Manual, SBP elections are irrevocable. However, 
 
Public  Law  101-189  (29  Nov  89)  established  an  open  enrollment  period  for  SBP  from 
April  1,  1992  to  March  31,  1993.  Neither  the  applicant  nor  his  widow  inquired  about 
changing  the  SBP  election  until  May  1993,  a  month  after  the  enrollment  period  had 
closed.  She has not presented any law or regulation that permitted changes to an SBP 
after the close of the open enrollment period. 
 
8.  Article  430901.D  of  volume  B  of  the  Department  of  Defense  Financial 
 
Management  Regulation  states  that  elections  made  during  the  open  season  under 
Public  law  101-189  were  not  valid  unless  the  member  lived  for  two  years  from  the 
effective date of election.1  Even if the applicant had been able to make an election in 
May 1993 (after the close of the open enrollment period) he would not have lived the 
necessary two years for his election to be valid.  He died on May 24, 1994.   
 
9.  In addition, according to the applicant's widow, the applicant was required by 
 
a divorce judgment, to list his daughter as the beneficiary until the minor reached age 
18.    That  did  not  occur  until  June  17,  1992,  which  would  have  been  the  earliest  the 
applicant  could  have  removed  the  daughter  as  beneficiary  from  his  SBP.    Therefore, 
even if the applicant had made the election in June 1992, he still would not have lived 
the full two years having passed away on May 24, 1994.   
 
 
10.  Based on the length of the delay, the lack of persuasive reasons for not acting 
sooner to correct the applicant's record, and the probable lack of success on the merits 
of the claim, the Board finds it is not in the interest of justice to waive the three year 
statute of limitations in this case.  
 
 
 
 
 
 
 

11.  Accordingly, the applicant's request should be denied. 

[ORDER AND SIGNATURES ON NEXT PAGE] 

 

 
 

                                                 
1  The law also required that premiums be deducted during the two-year survival period, and it required 
an additional premium based on the number of years that had elapsed since the member's retirement. 

The  application  to  correct  the  military  record  of  XXXXXXXXXXXXXXXXXX 

ORDER 

 
 
USCG (Ret.) is denied.   
 
 

 
 

 

 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 

 
 Edmund T. Sommer, Jr. 

 

 

 

 
 Dorothy J. Ulmer 

 

 

 
 
 Betsy L. Wolf