ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  
	BOARD DATE:  15 August 2019

	DOCKET NUMBER:  AR20180003508


APPLICANT REQUESTS: enrollment in the Survivor Benefit Plan (SBP).  He also requests a personal appearance before the Board.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Medical documents

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.   The applicant states he is requesting SBP coverage for his spouse.  At the time of his separation from the Army in 1999, he had life insurance coverage with a private company.  He was also in perfect health at the age of 48.  For those reasons, he opted out of the SBP program at the time.  Due to unseen circumstances, he was unable to afford private insurance and he discontinued coverage.  Since then, he has been diagnosed with cancer which can be verified by the Department of Veterans Affairs (VA).  He is now unable to obtain coverage.  He is married and would like to take care of his family before he passes.  Life insurance is necessary. 

3.  The applicant provides various medical documents, including a listing of his VA diagnoses (hypertension, prostate cancer, and other illness). 

4.  A review of the applicant’s service records show:

	a.  The applicant was born in December 1951.  He served in the Regular Army from March 1970 to November 1977. 

	b.  He enlisted in the Louisiana Army National Guard (LAARNG) on 6 December 1977.

	c.  He entered active duty on 28 February 1980.  He served through multiple extensions in the ARNG, in a variety of assignments

	d.  On 30 April 1993, Headquarters, LAARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter informed him that he completed the required years of service and he will be eligible for retired pay upon application at age 60.  With this letter, he was also issued: 

* SBP Information Sheet
* DA Form 1883 (SBP Election Certificate) 
* Information Sheet Regarding Reserve Component SBP (RCSBP)
* Reserve Component Supplemental SBP Election Certificate 
* Statement of Understanding 

	e.  His service record does not contain a DD Form 1883 (SBP Election Certificate) confirming whether he elected to participate or decline participation in the RCSBP.  It contains a DARP Form 3856 (RCSBP Election Certificate), dated 16 May 1993, that shows he declined to elect coverage under the RC-SSBP.  A DD Form 1883 (SBP 

	f.  On 13 October 1998, LAARNG issued Orders 286-009 transferring him to the Retired Reserve effective 31 May 1999.

	g.  He was honorably retired on 31 May 1999.  He completed over 26 years of active service. 

	h.  There is no evidence he elected to participate in the SBP before he retired in May 1999.  Likewise, there is no evidence he elected to participate in the SBP during an Opens Season after he retired or that he paid any SBP premiums since retirement.

5.  By regulation (AR 15-185), an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.

6.  By law and regulation, Reserve Component Soldiers who complete 20 or more years of qualifying service are issued a 20-year letter that informs them of their retirement eligibility.  The law in effect at the time of the applicant's retirement required a Soldier to make an election and return the enrollment form within 90 days of receipt.  

7.  By law and regulation (Title 10, U.S. Code, section 1148), active duty Soldiers may enroll in the SBP prior to their retirement.  The election must be submitted before the member retires.

8.  Public 108-375, enacted 28 October 2004, established an Open Season from 1 October 2005-30 September 2006.  Open Seasons are extensively publicized in Army Echoes to ensure all retirees were informed of their existence.  It is unknown if or when Congress may/will authorize the next Open Season.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that relief was not warranted.  Based upon the applicant previously submitting an election declining SBP coverage at the time of retirement, the Board concluded there is no error or injustice which warrants making a change to the applicant’s SBP coverage.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
	 
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.


REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.
2.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  

	a.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  

	b.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

	c.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

3.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  The election must be made prior to the effective date of retirement or else coverage automatically defaults to spouse coverage, if applicable.

4.  Public Law 95-397, the Reserve Component SBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 (and participate in SBP), to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:

* Option A: elect to decline enrollment and choose at age 60 whether to start SBP participation
* Option B: elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday
* Option C:  elect that a beneficiary receive an annuity immediately upon their death if before age 60

5.  Title 10, United States Code (USC), section 1448 states the program established by this subchapter shall be known as the SBP.  Sub-paragraph (a) (General Rules for Participation) states:

	a.  (1) Name of eligible participants—The program established by this subchapter shall be known as the Survivor Benefit Plan. The following persons are eligible to participate in the Plan: (A) Persons entitled to retired pay, and (B) Persons who would be eligible for reserve-component retired pay but for the fact that they are under 60 years of age. 

	b.  (2) Participants in the plan—The Plan applies to the following persons, who shall be participants in the Plan: (A) Standard annuity participants.— A person who is eligible to participate in the Plan under paragraph (1)(A) and who is married or has a dependent child when he becomes entitled to retired pay, unless he elects (with his spouse’s concurrence, if required under paragraph (3)) not to participate in the Plan before the first day for which he is eligible for that pay. (B) Reserve-component annuity participants.— A person who (i) is eligible to participate in the Plan under paragraph (1)(B), and (ii) is married or has a dependent child when he is notified under section 12731(d) of this title that he has completed the years of service required for eligibility for reserve-component retired pay, unless the person elects (with his spouse’s concurrence, if required under paragraph (3)) not to participate in the Plan before the end of the 90-day period beginning on the date on which he receives that notification.
A person who elects under subparagraph (B) not to participate in the Plan remains eligible, upon reaching 60 years of age and otherwise becoming entitled to retired pay, to participate in the Plan in accordance with eligibility under paragraph (1)(A).

ABCMR Record of Proceedings (cont)	 AR20180003508


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