PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           17 October 2000                   
	DOCKET NUMBER:   AR2000040083

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

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Linda D. Simmons		Member	
	Ms. Barbara J. Ellis		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 enrollment in the Survivor Benefit Plan (SBP) be cancelled and he be refunded all premiums paid into the Plan.

3.  The applicant states that he signed up for the SBP in April 1999 but in May or June 1999 his spouse changed her mind.  He returned to the Fort Bragg, NC Retirement Services Office (RSO) to obtain the forms so he could cancel the SBP but they gave him the wrong forms.  He retired in August 1999 and found out that he was still enrolled in the Plan.

4.  The applicant’s military records are not available.  The information contained herein was obtained from documents provided by the applicant.  

5.  The applicant enlisted in the Regular Army on 5 July 1979.  On 13 April 1999, he elected to enroll in the SBP for spouse and children coverage.  Apparently in June 1999 the applicant completed paperwork to cancel his enrollment in the SBP.  This paperwork is not available.  On 12 July 1999, the applicant and his spouse completed DD Form 2656-2, Survivor Benefit Plan (SBP) Termination Request in an attempt to cancel his enrollment.

6.  On 1 August 1999, the applicant retired.  

7.  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.

8.  Title 10, U. S. code, section 1448a(2)(A) provides that the SBP applies to a person who is eligible to participate in the SBP and who is married or has a dependent child when he becomes entitled to retired pay unless he elects (with his spouse’s concurrence) not to participate in the SBP before the first day for which he is eligible for that pay.

9.  The Army Retirement Services Office has confirmed that the DD Form 2656-2 is the incorrect form for a member not yet retired to complete in order to change his SBP election.

CONCLUSIONS:

1.  In April 1999, while the applicant was processing for retirement, he enrolled in the SBP.  By law, he could change his mind any time prior to the effective date of his retirement provided his spouse concurred.

2.  It appears he first attempted to cancel his SBP election in June 1999.  On    12 July 1999, the applicant and his spouse completed the form given to him to cancel his previous election to enroll in the SBP.  It cannot be determined when this paperwork reached the Defense Finance and Accounting Service (DFAS) but it appears DFAS would not have accepted the form at any time since it was the wrong form.  However, the applicant and his spouse made their decision prior to the effective date of his retirement.  It was not his fault that he was given the wrong form to complete.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that on 13 April 1999 the applicant, with the concurrence of his spouse, elected to decline to participate in the SBP.

2.  That the Defense Finance and Accounting Service refund to the applicant any and all SBP premiums deducted from his retired pay.

BOARD VOTE:  

__rvo___  __lds___  __bje___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000040083	
SUFFIX		
RECON		
DATE BOARDED	20001017	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.03	
2.		
3.		
4.		
5.		
6.