MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           9 January 2001                   
	DOCKET NUMBER:   AR2000042509

	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:

	Mr. Mark D. Manning		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Eric N. Andersen		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:  That the records of her deceased spouse, a former service member (FSM), be corrected to show that he did not disenroll from the Survivor Benefit Plan (SBP)

APPLICANT STATES:  That the FSM had been paying SBP premiums since he retired from the Tennessee National Guard.  She and the FSM were separated in December 1998 and he had threatened to terminate these benefits if she divorced him.  At the time of his death, they were still legally married and she should receive these survivor benefits.  She never consented to or signed any documentation to terminate these benefits.  If there is any such documentation purportedly signed by her, the signature is a forgery.  She provides no supporting evidence.  

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

He was born on 6 June 1933.  After having had prior enlisted service, he was appointed a warrant officer in the Army National Guard in 1963.  He has two notifications of eligibility for retired pay at age 60 (20-year letters) on file – one dated 8 February 1977 and one dated 3 December 1982.

The FSM’s SBP or Reserve Component SBP (RCSBP) election is not available and the Defense Finance and Accounting Service (DFAS) no longer has information on file as to which SBP he elected.  DFAS does have a Survivor Benefit Plan (SBP) Termination Request, DD Form 2656-2, on file.  It shows the FSM terminated his enrollment in the SBP on 22 March 1999.  The applicant’s signature is in section IV concurring in the FSM’s action.

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.

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. 

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 SBP.  Members retired for more than two years as of 17 May 1998 were authorized a one-year opportunity (17 May 1998 through 16 May 1999) to disenroll.  The spouse’s concurrence is required.  No premiums will be refunded to those who opt to disenroll.  Reservists who elected an option under the RCSBP will continue to have the Reservist Portion cost deducted from their retired pay.

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 DD Form 2656-2 at DFAS shows that the applicant concurred in the FSM’s termination of his SBP disenrollment.  If, as the applicant claims, her signature on this form is a forgery, the burden and costs of proving it is a forgery rests with her.  She may reapply to the Board for reconsideration when such proof is obtained.  Other supporting documentation, such as the marriage and death certificates, must also be provided.

3.  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

__mdm___  __clg___  __ena___  DENY APPLICATION

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

INDEX

CASE ID	AR2000042509	
SUFFIX		
RECON		
DATE BOARDED	20010109	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.