PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            6 December 2001
	DOCKET NUMBER:   AR2001062304

	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	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Harry B. Oberg		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 he be disenrolled from the Survivor Benefit Plan (SBP) and that all monies deducted from his pay for enrollment in the plan be returned to him.

3.  The applicant states, in effect, that at the time he elected not to be enrolled in the SBP, his wife was unavailable to sign the necessary documents agreeing to decline the SBP.  The forms were to be sent to his wife for her signature because she was house hunting for their impending retirement and the forms were never received.  As a result, he was involuntarily enrolled in the SBP and funds were deducted from his Retired Pay.  In support of his application, he submits a copy of his Data for Payment of Retired Pay (DD Form 2656) showing that he declined enrollment in the SBP and a notarized statement from his wife declining enrollment in the SBP.

4.  The applicant’s military records show that on 22 March 2001, the applicant signed the DD Form 2656 and elected not to participate in the SBP.  The block (block 30) of that form which indicates spouse’s concurrence with the SBP election is incomplete.

5.  On 30 June 2001, the applicant was honorably released from active duty in the pay grade of E-8 and was transferred to the Retired List, effective 1 July 2001. On 21 August 2001, the applicant submitted his application to the Board along with a notarized statement from his wife indicating that she concurred with the declination of enrollment in the SBP and that she never received the necessary form to decline SBP. 

6.  Public Law 99-145, enacted on 8 November 1985, with an effective date of 1 March 1986, provides, in effect, that in order for a member to provide less than maximum SBP coverage under Section 1448(a)(3)(A), Title 10, United States Code, the spouse’s written concurrence is required before the member’s retirement date.  Absent the spouse’s concurrence, the member will be automatically enrolled for full SBP benefits.  In rare instances, concurrence may be waived if it would be otherwise inappropriate to obtain it (e.g., spouse’s whereabouts are not known or spouse is mentally or physically challenged).

CONCLUSIONS:

1.  Although the applicant was properly enrolled in the SBP for the full amount of coverage at the time of his placement on the Retired List, due to the absence of spousal concurrence, the evidence of record clearly shows that the applicant elected to decline enrollment in the SBP.  

2.  While the Board recognizes that the spouse has subsequently provided a statement in which she concurs with the applicant’s election to decline participation in the SBP, after his retirement, and technically is not entitled to be disenrolled, the Board finds that under the circumstances, it would be in the interest of justice to do so.

3.  The Board notes that at the time the applicant made his election to decline enrollment in the SBP, his spouse was obviously not available because the form was not completed by his wife or officials at retirement services.  However, within 1 month after his retirement, the applicant again pursued the issue of declining enrollment in the program and was referred to the Board.  Given the statement of concurrence from his spouse, the Board finds it reasonable to believe that his spouse did not receive the forms necessary to decline the SBP and that it was her original intent to do so at the time. 

4.  Accordingly, the Board finds that it would be in the interest of justice to grant the applicant’s request for disenrollment from the SBP and to return any premiums deducted from his Retired Pay for his involuntary enrollment.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:  That all of the Department of the Army records related to this case be corrected by disenrolling the individual concerned from the SBP, effective 1 July 2001, by showing that he declined enrollment, and by returning to him any monies deducted from his pay from that date.

BOARD VOTE:  

___fe___  ___tap __  ___hbo__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Fred N. Eichorn_____
		        CHAIRPERSON

INDEX

CASE ID	AR2001062304	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/12/06	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  349	137.0300/TERM SBP	
2.		
3.		
4.		
5.		
6.