PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           22 July 1999                   
	DOCKET NUMBER:   AR1999019125

	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	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Thomas N. Kuhn		Member	
	Mr. Raymond J. Wagner		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 his records be corrected to show that he elected not to have an annuity under the survivor benefit plan (SBP) and that his payment for this benefit be stopped with a refund of monies erroneously paid.

3.  The applicant states that before he retired he elected “NO” on the DD Form 1883 (SBP election certificate) but SBP contributions have been taken from his retired pay.  He submits a copy of his DD Form 1883 and his 1998 retirement account statement.

4.  The applicant’s military records show that he returned to active duty on 6 December 1955 with 60 months prior active service.  He continued to serve and on 31 August 1973 he was separated from active duty and transferred to the Retired Reserve in grade E-7.

5.  Although not in the available record, the applicant’s copy of the DD Form 1883 shows that on 13 June 1973 he elected no coverage under the SBP program.  Both the applicant and a witness signed the form.

6.  Information provided by the Defense Finance and Accounting Service (DFAS) indicates that the applicant’s finance records show the same election of options and that there appeared to be an error in SBP costs being withheld from his retired pay.

7.  The applicant’s January 1998 retiree account statement shows that the amount of $109.29 is being deducted from his monthly retired pay for SBP costs. No information is currently available to determine how long this deduction has been in effect or the total dollar amount of these erroneous payments.

8.  Public Law 92-425, 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. The election made by the member was irrevocable.  Military members on active duty on 21 September 1972 were to submit forms electing the coverage desired, or electing not to participate, prior to retirement or becoming eligible for retired pay.

9.  Public Law 99-145, effective 1 March 1986, implemented, for the first time, a requirement that the spouse of the service member provide written concurrence with the SBP election.

CONCLUSIONS:

1.  In view of all the facts and circumstances of this case the applicant is entitled to the relief he now requests.  The SBP deduction from his retired pay is in error and he is entitled to a refund of the monies withheld from his pay.

2.  Just prior to his retirement the applicant completed the DA Form 1883 to show that he did not desire participation in the SBP.  DFAS has indicated that this form is on file and it appears the SBP deduction was in error.

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by refunding to the individual concerned all monies collected for SBP costs since his date of retirement as determined by an audit of his records performed by the DFAS.

BOARD VOTE:  

___cmf__  __tnk___  __rjw___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Calvin M. Fowler
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999019125	
SUFFIX		
RECON		
DATE BOARDED	19990722	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.00	
2.		
3.		
4.		
5.		
6.