MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 January 2001                   
	DOCKET NUMBER:   AR2000043274

	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. June Hajjar		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Karen A. Heinz		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 he did not terminate his participation in the Survivor Benefit Plan (SBP).

APPLICANT STATES:  That the FSM retired in 1976 and paid for the SBP until April 1999.  At that time, he asked her to sign a Survivor Benefit Plan (SBP) Termination Request, DD Form 2656-2.  He told her that she would receive the benefit upon his death.  She did not know what she was signing until after his death.  She assumes that he either misunderstood the effect of the form or misrepresented it to her.  Either way, she would not have signed it if she knew its effect.

COUNSEL CONTENDS:  Counsel makes no contention.

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

After having had prior service, he reenlisted in the Regular Army on 6 August 1956.  He and the applicant married on 24 July 1958.  He retired on 1 December 1976.  At that time he enrolled in the SBP for spouse coverage.  

On 17 April 1999, the FSM completed a DD Form 2656-2.  The applicant signed section IV, acknowledging that she read and understood the disadvantages and advantages of the FSM’s decision to terminate the SBP, that she understood that she would receive no SBP benefits upon the death of the FSM, and that she concurred with the FSM’s decision to terminate his participation in the SBP.  The FSM had signed section III, acknowledging that he read and understood the disadvantages and advantages of his decision to terminate the SBP, that SBP coverage would discontinue on the first day of the month following the month his request was received, and that no SBP benefits would be paid upon his death.

On 24 March 2000, the FSM died.

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 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. 

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.  The evidence of record shows, and the applicant agrees, that she signed DD Form 2656-2 concurring with the FSM’s decision to terminate his participation in the SBP.

2.  The Board does not agree with the applicant’s contention that she did not know what she was agreeing to.  The title of the DD Form 2656-2 is very clear – Survivor Benefit Plan (SBP) Termination Request.  The short section she was supposed to read before she signed the form was also very clear – she understood that she would receive no SBP benefits upon the death of the FSM.

3.  The Board does not agree with the applicant’s contention that the FSM misunderstood the effect of signing the form, as the short section he was supposed to have read before he signed the form was also very clear – no SBP benefits would be paid upon his death.

4.  Regrettably, 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:

________  ________  _kah____  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jh____  __le____  ________  DENY APPLICATION

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

INDEX

CASE ID	AR2000043274	
SUFFIX		
RECON		
DATE BOARDED	20010125	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.00	
2.		
3.		
4.		
5.		
6.