BOARD DATE: 19 September 2017 DOCKET NUMBER: AR20160003908 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ __x______ __x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 19 September 2017 DOCKET NUMBER: AR20160003908 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 19 September 2017 DOCKET NUMBER: AR20160003908 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 correction of his November 1990 Survivor Benefit Plan (SBP) election to show he elected an annuity based on his “full amount” of retired pay in lieu of a “reduced amount.” 2. The applicant states he did not sign anything. 3. The applicant provides no additional evidence. 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 applicant enlisted in the Regular Army on 14 December 1966 and he held an administrative military occupational specialty 3. He served through multiple reenlistments in a variety of stateside and overseas assignments and he was promoted to sergeant first class (SFC)/E-7. 4. On 21 November 1990, and in connection with his retirement, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel). He indicated he was married to Kxxxxxx and they had a child, Kimberly, who was born on 26 December 1989. This form shows: * he elected "spouse and dependent children" SBP coverage based on a reduced amount of $349.00 (minimum) * he and a Retirement Services Officer signed this form on 21 November 1990 * his spouse indicated she had been fully informed and counseled concerning the SBP option and concurred with the election; she also signed this form on 21 November 1990 5. The applicant retired on 31 December 1990 and he was placed on the retired list in his retired rank/grade of SFC/E-7 on 1 January 1991. REFERENCES: 1. Public Law 92-425, enacted 21 September 1972, repealed the Retired Serviceman’s Family Protection Plan 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. An election, once made, was irrevocable except in certain circumstances. 2. Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse’s written concurrence for a retiring member’s election that provided less than maximum spouse coverage. 3. Public Law 101-189, enacted 29 November 1989, established an Open Season to be conducted 1 October 1991 through 30 September 1992. It required that enrollees live 2 years from the effective date of election for beneficiaries to be eligible for an annuity. Additionally, Public Law 101-510, enacted 5 November 1990, delayed the start of the third Open Season to 1 April 1992 through 31 March 1993. 4. Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006. It required that enrollees live 2 years from the effective date of election for beneficiaries to be eligible for an annuity. The retiree must have paid monthly premiums starting on the date of enrollment and a buy-in premium covering all the costs that would have been paid for the election if it had been made at the first opportunity to do so. Extensive publicity was given in Army Echoes. DISCUSSION: 1. The applicant completed an SBP election in connection with his retirement. He was counseled by an RSO and elected SBP coverage for his spouse and child(ren) based on a reduced amount. He signed the election form and his spouse concurred with his election. 2. An election, once made, is irrevocable except in certain circumstances, such as during an Open Season. There have been at least two Open Seasons since the applicant retired. There is no evidence he changed his election from reduced to full amount during an authorized period. 3. Open Seasons are authorized by Congress. It is unknown when the next Open Season will be authorized. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003908 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003908 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2