PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           28 October 1999                   
	DOCKET NUMBER:   AR1999018519

	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. Thomas D. Howard, Jr.		Chairperson	
	Mr. Thomas N. Kuhn		Member	
	Mr. James P. Steuve		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, in effect, that his records be corrected to show that he declined to participate in the Survivor Benefit Plan (SBP).

3.  The applicant states that he was receiving chemotherapy for bone cancer at the time of his retirement.  He never knowingly enrolled in the program.

4.  The applicant’s military records are not available.

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.  Failure to elect or decline participation results in an automatic enrollment.

6.  In the processing of this case, an advisory opinion was obtained from the Army Retirement Services Office.  That office recommended approval of the applicant’s request to change his SBP election from “spouse only” to “decline,” retroactive to his date of retirement.  That office noted he had retired from active service (presumably he was placed on the temporary disability retired list) on       5 August 1994 and was placed on the permanent disability retired list on              6 February 1997.  Since the Defense Finance and Accounting Service could not provide the applicant’s finance file, no proof of government administrative error was found.  However, given the conditions surrounding his medical retirement, it is likely that he did not make an informed decision on SBP participation.  That office also recommends waiver of the debt which has accrued due to the non-payment of SBP premiums through direct remittance or by The VA.

7.  A copy of the advisory opinion was provided to the applicant for comment.  He did not respond within the given time frame.

CONCLUSIONS:

1.  There is no evidence of record available to the Board to show that the applicant made an SBP election or that he and his spouse were provided with proper counseling concerning the SBP program.  Therefore, and in view of his spouse’s agreement with his request to withdraw from the program, it would be appropriate to show he declined to participate at the time of his retirement.

2.  In view of the foregoing, 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 that the applicant declined to participate in the SBP at the time of his retirement on 5 August 1994 and that his spouse concurred in his decision at that time.

2.  That any debt the applicant may owe due to non-payment of SBP premiums be waived retroactive to 5 August 1994.

BOARD VOTE:  

__tdh___  __tnk___  __jps___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Thomas D. Howard, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999018519	
SUFFIX		
RECON		
DATE BOARDED	19991028	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.