MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           14 December 2000                   
	DOCKET NUMBER:   AR2000044706

	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. Hubert O. Fry, Jr.		Member	
	Mr. Richard T. Dunbar		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 he stop being charged for the Survivor Benefit Plan (SBP) and that he be reimbursed for the monies already taken from him. 

APPLICANT STATES:  That he told the Army he was waiving his retired pay in order to take his VA pay.  Everything seemed fine until around December 1999 when a check arrived.  He finally got the Defense Finance and Accounting Service (DFAS) to stop sending checks but they are still charging him for SBP.  

EVIDENCE OF RECORD:  The applicant's military records are not available.  The information contained herein was obtained from alternate sources.

The applicant entered the Army National Guard on an unknown date.  Around 1998, he was processed for physical disability separation.  He was placed on the Temporary Disability Retired List (TDRL) in pay grade E-7 on 28 September 1998.  On 24 September 1998 he had enrolled in the SBP for spouse coverage, full base amount.

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.  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 applicant elected to enroll in the SBP for spouse coverage, full base amount, at the time he was placed on the TDRL.  The SBP protection his spouse is receiving must be paid for, whether it is paid for out of military retired pay or through a deduction of VA pay or a direct remittance if military retired pay has been waived.

3.  The applicant will have been in a retired status two years as of 28 September 2000.  He has a one-year period, from 28 September 2000 through                   27 September 2001, to disenroll from the SBP.  If he elects to disenroll, his spouse must concur.  No premiums will be refunded to him if he opts to disenroll.

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

__JH____  __HOF___  __RTD___  DENY APPLICATION

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

INDEX

CASE ID	AR2000044706	
SUFFIX		
RECON		
DATE BOARDED	20001214	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.03	
2.		
3.		
4.		
5.		
6.