PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           10 November 1998                   
	DOCKET NUMBER:   AC98-09958

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Ms. Irene E. Wheelwright		Member	
	Ms. Margaret K. Patterson		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that he be enrolled in the Survivor Benefit Plan (SBP).

3.  The applicant states when he retired in August 1971, no one informed him of the SBP.  He returned to Germany not knowing about the SBP and did not know of its existence until 1991 when he happened to read in an Army Echoes article about an open season enrollment period upcoming in 1992 - 1993.  He did not know about the two previous open season enrollment periods.  In October 1991, after reading this article, he called the finance office in Indianapolis, IN.  In February 1992, the Defense Finance and Accounting Service - Indianapolis (DFAS-IN) sent him some information and he immediately saw his local SBP officer.  He completed the enrollment form and sent it in (by regular mail, not registered mail).  It was never received.  He still wants to enroll.  He understands he may have to pay back premiums.

4.  The applicant’s military records show that he had prior enlisted service when he was commissioned a second lieutenant on 13 January 1953.  On 6 August 1971 he applied for an overseas separation.  Apparently, this was disapproved as he was separated for retirement at Fort Dix, NJ on 31 August 1971, in pay grade O-5, after completing over 20 years of creditable active service.  He apparently returned to Germany (his spouse was German) shortly thereafter.

5.  Public Law 92-245, 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.

6.  An open season was provided so soldiers who had retired prior to enactment of the SBP could elect to enroll in the program.  On 16 November 1973, that first open season enrollment period was extended a further six months, until            20 March 1974.  The second open season ran from 1 October 1981 to              30 September 1982, and the third open season ran from 1 April 1992 to            31 March 1993.

7.  In the processing of this case, an advisory opinion was obtained from U. S. Army Reserve Personnel Command (AR-PERSCOM).  AR-PERSCOM recommended that the applicant’s request be denied.  He did not enroll during the first two open season enrollment periods.  He tried to enroll on 22 February 1992 during the third open season enrollment period, but according to his letter he was informed in April 1992 that his application had not been received by DFAS.  He had until 31 March 1993 to enroll, but did not follow up until February 1996.

8.  The applicant rebutted this opinion.  He states when he was notified in April 1992 that DFAS had not received his application, he call DFAS-IN.  DFAS-IN told him that they were in the process of moving but someone would get back with him.  No one did.  He states he wrote twice more after that time and received no reply until late 1993, when DFAS wrote him stating it was too late.  They recommended he apply to this Board, which he has now done.

CONCLUSIONS:

1.  The applicant retired on 31 August 1971, prior to establishment of the SBP.  He returned to Germany shortly thereafter and has lived there to the present day.

2.  The applicant was unaware of the existence of the SBP until 1991, when he saw an article in the Army Echoes about the third open season enrollment period for the program.  He obtained information from DFAS, saw his local SBP officer, completed the application and submitted it.

3.  The application was never received by DFAS.  He made several inquiries into the status of his application and by time DFAS responded, he was told it was too late.

4.  Considering the applicant’s situation, i. e., residing outside the United States, the Board believes the applicant made reasonable efforts to enroll in the SBP in a timely manner during the third open season enrollment period.  However, he does not state the type of coverage or how much coverage he requested.

5.  In view of the foregoing and notwithstanding the advisory opinion, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing the applicant enrolled in the SBP effective 1 April 1992.  The applicant must first contact DFAS and provide them information on the type of coverage he elected (i.e., “spouse only” or some other coverage) and if the beneficiary(ies) is to be covered at the maximum level or some lesser amount.

2.  That any and all premiums due for this coverage will be collected from the applicant’s retired pay at a reasonable pro-ration.

BOARD VOTE:  

CMF____  IEW____  MKP_____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON