MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           14 November 2000                   
	DOCKET NUMBER:   AR2000038965

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Ms. Meta Waller		Member	
	Mr. Terry L. Placek		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, that his records be corrected to show he did not enroll in the Survivor Benefit Plan (SBP) and that he be reimbursed all premiums paid into the SBP.

APPLICANT STATES:  That he did not ask for the SBP and he was not told that if he did not want it he had to put it in writing.  He applied to the Board back in 1998 but because his records could not be found no action was taken on his application.  He provides a copy of his microfiche with this application.

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

That he enlisted in the Regular Army on 6 December 1977.  He retired on           1 January 1998.  He apparently failed to outprocess from the Fort Eustis, VA Retirement Services Office prior to retiring and therefore did not complete the Data for Payment of Retired Personnel, DD Form 2656, prior to his retirement.  The DD Form 2656 includes a section for the SBP election/declination.

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.  A member is automatically enrolled in the SBP for the full base amount unless he elects (with his spouse’s concurrence) not to participate in the SBP before the first day for which he is eligible for retired pay.

Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from the SBP.  The spouse’s concurrence is required.  No premiums will be refunded to those who opt to disenroll. 

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

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The evidence of record indicates that the applicant failed to report to the Retirement Services Office as part of his retirement outprocessing.  This resulted in his failure to complete a DD Form 2656, which includes a section for declining the SBP.  As a result of this failure, the applicant was automatically enrolled in the SBP.  The applicant’s spouse received the protection of the SBP during this period of his enrollment.  Had he died, she would have received the SBP annuity. The Board concludes that it is not appropriate to correct his records to show he declined enrollment.

3.  In accordance with Public Law 105-85, the applicant now has until                   31 December 2000 to take advantage of his current opportunity to disenroll from the SBP.  

4.  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

__slp___  __mw____  __tlp___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000038965	
SUFFIX		
RECON		
DATE BOARDED	20001114	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.