MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           2 May 2002                   
	DOCKET NUMBER:   AR2002069386

	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. Fred N. Eichorn		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Christopher J. Prosser		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 effect, that his records be corrected to show he declined to participate in the Survivor Benefit Plan (SBP) and that he be refunded all premiums paid into the program.

APPLICANT STATES:  That he was in the first group to be offered the SBP but the installation did not have the right forms so they were going to use the old form they had for the Retired Servicemen’s Family Protection Plan (RSFPP).  He never wanted SBP as he stated at that time and as he has done so on many occasions since.  A check of his retirement orders and a check of the forms of others who retired at the same time would reveal that they, too, did not have the proper form.  He has tried many times over the years to get this settled once and for all, to no avail.  He provides no supporting evidence.

EVIDENCE OF RECORD:  The applicant's military records show:

After having had prior service, he reenlisted in the Regular Army on 26 May 1959.  He retired on 1 November 1972.  An SBP election certificate or other form indicating he declined to participate in the SBP is not on file in his records.  His Data for Retired Pay, DA Form 3713, indicates he did not make an election of options under the RSFPP.  

Public Law 92-425, enacted 21 September 1972, repealed the RSFPP and established the SBP.  The SBP 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 RSFPP was not automatically converted to the SBP.  A member must take positive action to decline participation in the SBP.  A failure to do so defaults to automatic spouse coverage, full base amount.  

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.  

Public Law 105-261, enacted 17 October 1998, provided that, effective 1 October 2008, no premiums will be withheld for a category of beneficiary, at a level of coverage after the later of:  (1) the 360th month for which the participant’s retired pay is reduced; and (2) the month during which the participant attains age 70.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1.  The Board does not dispute the applicant’s contention that his installation did not have the correct SBP enrollment forms at the time he retired.  The Board also does not dispute the fact that his DA Form 3713 shows that he had not enrolled in the RSFPP but this fact is immaterial since an RSFPP election did not convert into an SBP election.

2.  The applicant has provided no evidence to show he attempted to disenroll from the SBP prior to the date of his current application.  It appears that he was automatically enrolled in the SBP when the Army Finance Office did not receive a declination to participate.  He should have realized, at least from his annual Retiree Pay Statements, that SBP premiums were being deducted.  He contends that he tried over the years to get this settled but has provided no documentation to show what attempts were made.  He had a one-year opportunity (May 1998 through May 1999) to disenroll, after which he could have continued attempts to obtain retroactive relief.  Again, however, he provides no evidence to show that he attempted to do so.  

3.  The applicant’s eligible beneficiaries have had SBP protection for almost 30 years.  There is insufficient evidence to show that it would be equitable at this date to grant the relief requested.

4.  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

__fne___  __wtm___  __cjp___  DENY APPLICATION

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

INDEX

CASE ID	AR2002069386	
SUFFIX		
RECON		
DATE BOARDED	20020502	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.03	
2.		
3.		
4.		
5.		
6.