MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           6 September 2001                   
	DOCKET NUMBER:   AR2001058984

	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. Luther L. Santiful		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. John T. Meixell		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:  In his original application dated 5 March 2000, that his records be corrected to show he disenrolled from the Survivor Benefit Plan (SBP).

APPLICANT STATES:  That he was not told that he could disenroll.  He was told that once his wife reached age 62 she would get a pension every month.  He did not receive any information on the disenrollment season.  Since he can no longer work to get an extra income, he hardly has any money left to pay for food and medications.

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

The applicant was born on 6 September 1933.  His notification of eligibility for retired pay at age 60 (his 20-year letter) was received by him on 20 December 1976.  He enrolled in the SBP in 1993 upon reaching age 60, apparently for spouse coverage.  

When the applicant’s original application was received by the Board, his spouse’s concurrence was not provided.  A blank concurrence statement was provided to him and her signature was requested.  However, an incorrect statement (wherein the spouse concurred with the SBP election change to change the SBP election to former spouse coverage) had been provided.  By the time the correct statement was provided to him, his spouse had left him and he was unable to contact her.  Per coordination with the applicant, his original application was administratively closed and he was informed he could reapply once the appropriate documents could be provided.  He was also informed that he should provide the Defense Finance and Accounting Service with a copy of his divorce decree as soon as he received it.

On 8 May 2001, the applicant and his spouse divorced (the divorce becoming final on 7 August 2001).  There was no separate document that would effect a division of property between the applicant and his spouse.  The applicant reapplied on 29 May 2001, providing the divorce decree as supporting evidence.

Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Coverage and premiums are suspended when there is no eligible beneficiary.

Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees had a one-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from the 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.  This disenrollment period was publicized in the retiree bulletin “Army Echoes” and other military publications.

CONCLUSIONS:

1.  There is no evidence of Government error in this case.  The 1998 – 1999 opportunity to disenroll from the SBP was well publicized.  There is no compelling equity interest on behalf of the applicant sufficient to support the relief requested. He received the benefit of the insurance provided by the SBP from 6 March 1993 until 7 August 2001, the date of his divorce.  Had he died during that period, the SBP would have been paid to his beneficiary.

2.  Regrettably, in the processing of his original application the applicant was provided a model spousal waiver in favor of a former spouse which his spouse signed and returned.  The language of the waiver may have been interpreted by his spouse as a commitment to continue SBP coverage in her favor beyond the pending divorce.  The applicant was unable to provide any other evidence to clarify the signed waiver so the spousal concurrence requirement has not been satisfied.  His recent divorce has relieved him of the obligation to pay further premiums.  

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

__lls___  __mhm___  __jtm___  DENY APPLICATION

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

INDEX

CASE ID	AR2001058984	
SUFFIX		
RECON		
DATE BOARDED	20010906	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.03	
2.		
3.		
4.		
5.		
6.