PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           25 January 2001                   
	DOCKET NUMBER:   AR2000045235

	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:

	Ms. June Hajjar		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Karen A. Heinz		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, in effect, that his records be corrected to show that he never enrolled in the Survivor Benefit Plan (SBP).

3.  The applicant states that he was told that he had to enroll his wife in the SBP with at least the minimum coverage or he could not clear post.  He is 100% disabled and has since found out that he did not have to enroll his wife.  He cancelled the SBP but could not get his premiums refunded.

4.  The applicant’s military records show that he was inducted into the Army on   28 September 1965.  

5.  On 7 July 1981, the applicant was placed on the Temporary Disability Retired List (TDRL) in the grade of E-6 primarily for having had his left lung removed.  At this time, he completed a Data for Payment of Retired Army Personnel, DA Form 4240.  In Part IV, he elected spouse only coverage for a reduced base amount.  One of the options in Part IV is “I decline coverage.”  Part X contains information on the SBP.  It states in part “IMPORTANT:  YOUR ELECTION IS PERMANENTLY IRREVOCABLE.  If you are married and elect not to participate or…”

6.  On 31 March 1983, the applicant was removed from the TDRL and on 1 April 1983 he was placed on the Retired List with a disability rating of 80 percent.  

7.  On 15 September 1983, the VA rated the applicant at 100 percent disability.

8.  The applicant apparently wrote to the President in April 1989 concerning withdrawal from the SBP.  On 3 August 1989, the U. S. Army Finance and Accounting Center informed him that since he was rated 100 percent totally disabled by the VA on 15 September 1983, he was eligible to withdraw from the SBP in 1993.

9.  In 1999, the applicant requested withdrawal from, and was disenrolled from, the SBP.

10.  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.

11.  Public Law 96-402, enacted 9 October 1980 but effective 1 December 1980, established a withdrawal clause for members rated totally disabled by the VA.

12.  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. 

13.  Title 10, U. S. Code, section 1452(g)(1) provides that a person who has elected to participate in the SBP and who is suffering from a service-connected disability rated by the VA as totally disabling and has suffered from such disability while so rated for a continuous period of 10 or more years (or, if so rated for a lesser period, has suffered from such disability while so rated for a continuous period of not less than 5 years from the date of last discharge) may discontinue participation in the Plan.  Discontinuance is effective on the first day of the first month following the month in which the request is received.  Participation may not be discontinued without the written consent of the beneficiary or beneficiaries of the person.

CONCLUSIONS:

1.  The Board does not agree with the applicant’s contention that he would not have been allowed to clear post without enrolling his wife in the SBP.  The DA Form 4240 makes clear in more than one section that declination of coverage, at least with his spouse’s consent, was an option.  

2.  The applicant was informed in 1989 that he was eligible to withdraw from the SBP in 1993.  He provides no evidence to show that he attempted to withdraw in 1993 and it appears that he waited until the 1999 withdrawal opportunity opened under another provision of the law.  However, the Board concludes that as a matter of equity partial relief should be granted and that his records should be corrected to show that he did disenroll from the SBP in 1993 (since his spouse consented to withdrawal in 1999 the Board presumes she would have consented in 1993) and to refund premiums paid from that date to 1999.

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 the applicant disenrolled from the SBP on                  15 September 1993 to be effective 1 October 1993.

2.  That the applicant be refunded all SBP premiums paid into the program from 1 October 1993 to the present as a result of the above correction.

3.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__jh____  __le____  __kah___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			June Hajjar
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000045235	
SUFFIX		
RECON		
DATE BOARDED	20010125	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.03	
2.		
3.		
4.		
5.		
6.