PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           15 January 2002                   
	DOCKET NUMBER:   AR2001061810

	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. Irene N. Wheelwright		Chairperson	
	Mr. Hubert O. Fry, Jr.		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 enrollment in the Survivor Benefit Plan (SBP) be reinstated.

3.  The applicant states that a Department of Veterans Affairs (VA) representative told him, because he was receiving 60 percent disability compensation, his spouse would receive a more generous annuity from the VA   if he died than she would from the SBP.  After he requested his SBP be terminated, he learned from another VA representative that the earlier information would be true only if he died from his disabilities.  That is not what he understood from the first VA representative.

4.  The applicant’s military records show that he enlisted in the Regular Army on 3 November 1987.

5.  The applicant’s physical evaluation board (PEB) paperwork is not available.  He was separated by reason of a permanent disability retirement, with a 30 percent disability rating, on 21 November 1998.  At this time, he enrolled in the SBP for spouse and children coverage.  

6.  The VA apparently awarded him a 60 percent disability rating after he retired and counseled him concerning Dependency and Indemnity Compensation (DIC). DIC payment may be authorized for surviving unremarried spouses of members or veterans who died from (1) a disease or injury incurred or aggravated while on active duty or active duty for training; (2) an injury incurred or aggravated in line of duty while on inactive duty training; or (3) a disability compensable by VA.

7.  On 9 April 2001, the applicant, with his spouse’s concurrence, requested his SBP coverage be terminated.

8.  Public Law 92-425, 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.  

9.  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.  

CONCLUSIONS:

1.  It appears the applicant was improperly counseled by a VA representative concerning DIC benefits, thereby causing him to request termination of his SBP coverage in the belief his spouse would receive a more generous annuity from the VA no matter the cause of his death.  He learned shortly after he requested termination of his SBP that only if he died under certain circumstances would his spouse receive DIC benefits whereas she would receive the SBP annuity no matter what caused his death.

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 did not request termination of his SBP on 9 April 2001 and that his SBP coverage remained in effect.

2.  That the applicant be advised the Defense Finance and Accounting Service will be instructed to collect any SBP costs due.  

BOARD VOTE:  

__inw___  __hof___  __dph___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Irene N. Wheelwright
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001061810	
SUFFIX		
RECON		
DATE BOARDED	20020115	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.03	
2.		
3.		
4.		
5.		
6.