PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           16 December 1999                   
	DOCKET NUMBER:   AR1999028349

	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. Fred K. McCoy		Chairperson	
	Mr. Raymond V. O’Connor, Jr.		Member	
	Mr. Stanley Kelley		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 he be refunded all premiums he paid into the Survivor Benefit Plan (SBP).

3.  The applicant states that he has had a stroke and needs the refund.  He tried to cancel his SBP in 1991 and twice after that date but he never received a response.  A letter dated 29 April 1991 to Retired Pay Operations and a letter dated 20 May 1997 to the Defense Finance and Accounting Service (DFAS) are provided as supporting evidence.

4.  The applicant's military records show he was born on 11 December 1930.  After having had prior active service, he entered the U.S. Army Reserve on       21 May 1953.  He received his notification of eligibility for retired pay at age 60 in 1979.  At this time he apparently did not elect to participate in the Reserve Component SBP (RCSPB).  

5.  On 19 September 1990, the applicant completed DA Form 4240, Data for Payment of Retired Army Personnel and elected to participate in the SBP for coverage of a natural person with insurable interest.  

6.  On 29 April 1991, the applicant wrote to the Retired Pay Operations requesting his SBP be canceled because he did not have the proper information at the time and did not understand what he was signing up for or how much it would cost.

7.  On 20 May 1997, the applicant wrote to DFAS requesting his SBP be canceled.  He noted in his letter that he had tried three times before to cancel but other than the April 1991 letter it is unknown when he requested cancellation.  A recent inquiry to him elicited no new information.  The evidence of record shows that his SBP premiums stopped effective 1 July 1997.

8.  Public Law 92-245, enacted 21 September 1972, established the SBP.  The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents or, if not married or with no dependent children, to a person with an insurable interest.  An election once made was irrevocable except under certain circumstances.

9.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  If a member failed to make an election within 90 days of receiving his or her 20-year letter or elected to decline enrollment, he or she could choose at age 60 whether to start SBP participation.  

10.  Public Law 103-337, enacted 5 October 1994 provided that insurable interest coverage may be arbitrarily discontinued at any time without changing to spouse or child coverage.  No refund of premiums is authorized.

CONCLUSIONS:

1.  The Board concludes there is no evidence of Government error in this case. As a senior non-commissioned officer, the applicant had a responsibility to himself to research any insurance program as to details and costs prior to committing himself to it.  The applicant was from Georgia.  He had three active duty Army installations, each one with a full-time Retirement Services Officer available, who could assist him if he felt the U. S. Army Reserve was not providing him with enough information.  

2.  The law was changed in 1994 to allow members to cancel insurable interest SBP coverage (with no refund).  The evidence provided by the applicant shows one attempt to cancel his coverage, but it was made prior to enactment of the law.  There is no available evidence to show if he made his second and third attempts after enactment of the law.  

3.  However, the Board concludes that it would be in the interest of compassion to show the applicant requested cancellation of his SBP coverage in October 1994 and that he be reimbursed the premiums he paid between that time and July 1997.  

4.  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:

     a.  showing the applicant requested cancellation of his SBP, insurable interest coverage effective 5 October 1994; and

     b.  reimbursing the applicant any and all SBP premiums he paid between       5 October 1994 and 1 July 1997.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__fkm___  __rvo___  __sk____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Fred K. McCoy
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999028349	
SUFFIX		
RECON		
DATE BOARDED	19991216	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.03	
2.		
3.		
4.		
5.		
6.