PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           11 September 2001                   
	DOCKET NUMBER:   AR2001058391

	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. Celia L. Adolphi		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Donald P. Hupman, Jr.		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 records be corrected to show he declined to participate in the Survivor Benefit Plan (SBP) and that he be reimbursed all SBP premiums that have been taken out of his retired pay.

3.  The applicant states that he was told by the Retirement Section at Fort Sam Houston, TX that he needed to resign his Data for Payment of Retired Personnel, DD Form 2656, because the original was misplaced or lost.  They faxed it to him on 8 January 2001 and he returned it by fax on 9 January 2001.  However, SBP premiums have been taken out of his retired pay.  The Defense Finance and Accounting Service – Cleveland Center (DFAS-CL) told him that he needed to apply to the Board to have his pay corrected.

4.  The applicant’s military records show that he enlisted in the Regular Army on 17 June 1980.  He divorced in November 1998 and was divorced when he retired on 1 January 2001.

5.  Apparently, the applicant had been allowed to depart on terminal leave without completing a DD Form 2656.  When the error was discovered, he was faxed a DD Form 2656 with instructions to fax a copy back to Fort Sam Houston and to send the original, along with a copy of the divorce decree, straight to DFAS-CL.  On 9 January 2001, after the applicant’s retirement date, he completed the DD Form 2656 declining to participate in the SBP.  

6.  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.  The election, or declination to participate, must be made prior to the effective date of retirement.

CONCLUSIONS:

1.  The Board concludes that there is evidence of Government error in this case. It appears the applicant was allowed to depart on terminal leave prior to completing a DD Form 2656 with the concomitant requirement to make an SBP election.  The error was not corrected until after the effective date of his retirement.  

2.  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 completed his DD Form 2656 on              1 December 2000 and declined to participate in the SBP.

2.  That as a result of the above correction the applicant be refunded all SBP premiums deducted from his retired pay.

BOARD VOTE:  

__cla___  __clg___  __dph___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Celia L. Adolphi
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001058391	
SUFFIX		
RECON		
DATE BOARDED	20010911	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.