MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:                              
	DOCKET NUMBER:   AC9810531

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

	Mr. Loren G. Harrell		Director	
	M		Analyst	

  The following members, a quorum, were present:

	Mr. 		Chairperson	
	Mr. 		Member	
	Mr. 		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  In effect, correction of his military records to show he elected not to participate in the Survivor Benefit Plan (SBP) at the time of his retirement.

APPLICANT STATES:  He was improperly counseled.

EVIDENCE OF RECORD:  The applicant's military records show:

He was born on 25 November 1920.  After initially enlisting in the Army National Guard on 15 October 1940, he obtained a commission on 26 November 1942.  On 15 September 1972, he was notified that he was eligible for Reserve retired pay at age 60.  On 25 November 1980, he was placed on the retired list, in the rank of lieutenant colonel, after completing over 31 years of qualifying service and over 40 years of total service for longevity pay purposes.  

On 28 September 1981, the applicant completed and signed DA Form 4240, Data for Payment of Retired Army Personnel.  He elected to participate in the SBP, dependent children only, at the full base amount.  He checked “yes” to part 14A, “Is/are child(ren) incapable of self support because of a mental or physical incapacity?  (If yes, see item Xd on reverse.)”  He completed part 17d with one child’s name, the child’s date of birth 19 July 1950 (the applicant’s Record of Emergency Data shows that child’s date of birth as 17 June 1949) and the annotation that the child is physically and mentally incapacitated.  Part 17d states “(See Part X for definition of dependent children).”  Part Xd defines a dependent child as one who is incapable of self-support because of a mental or physical incapacity which existed before the 18th birthday, or was incurred before age 22 while pursuing a full-time course of study of training. 

In the processing of this case, an advisory opinion was obtained from the Army Reserve Personnel Command, Retirement Team.  That office noted that the applicant elected to take the SBP when it was offered to him.  The form clearly states all requirements for election of a child as an annuitant.  His request should be denied because he failed to show that sufficient counseling was not provided.

On 22 September 1998, conversation with the Defense Finance and Accounting Office - Cleveland shows that the applicant’s SBP premiums were halted for a time beginning in 1994.  No details are available.  However, the premium deductions were reinstated with his last retirement check.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  On 28 September 1981, the applicant elected to participate in the SBP for his physically and mentally incapacitated child.  The DA Form 4240 clearly defined such a child.

2.  The applicant was a lieutenant colonel with over 40 years of military service.  He has provided no evidence that he was improperly counseled or did not understand what he was electing.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director