MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 July 2002
	DOCKET NUMBER:   AR2002070398

	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	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Kenneth W. Lapin		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:  That his records be corrected to show he did not enroll in the Survivor Benefit Plan (SBP). 

APPLICANT STATES:  In effect, that his Department of Veterans Affairs (VA) disability compensation exceeds his retired pay and his family will never receive the SBP benefits.

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

That he was born on 3 August 1937.  He enlisted in the U. S. Army Reserve (USAR) in 1955 and was later commissioned in the USAR.  He served on active duty from 1963 to 1972 when he was released to the Standby Reserve.  In 1982, he was transferred to the Retired Reserve.

The applicant attained age 60 in August 1997.  For an unknown reason, he applied for retired pay in August 2000.  At that time he was informed that he had only 18 years of qualifying service.  He applied to the Board for correction of his records to show he had 20 years of qualifying service for a nonregular retirement. In proceedings prepared to reflect the Board's consideration of his case on          6 September 2001 (docket number AR2001053035), the Board recommended approval of his request and he was granted eligibility for retired pay retroactive to 3 August 1997.  The recommendation was subsequently approved, retirement orders were published, retired pay was initiated and retroactively paid.  At the same time the Defense Finance and Accounting Service billed the applicant for past due SBP premiums.  

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.  A member who is married or has a dependent child when he becomes entitled to retired pay is automatically enrolled in the SBP unless he elects, with his spouse’s concurrence, if required, not to participate in the SBP before the first day for which he is eligible for that pay.  Premiums are normally deducted from retired pay.  When retired pay has been waived in lieu of VA compensation, premiums are normally paid by direct remittance by the member.

Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse’s written concurrence for a retiring member’s election that provides less than maximum spouse coverage.

Title 10, U. S. Code, section 1450(e)(1) provides that if an SBP annuity is not payable because the Dependency and Indemnity Compensation (DIC) payment is greater, then any amount deducted from the retired pay of the deceased member shall be refunded to the surviving spouse or former spouse.

On 24 June 2002, the applicant informed the Board’s analyst that his spouse did not wish to concur with his request to disenroll from the SBP.

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.  Because the applicant’s eligibility for retired pay was granted by Board action after he attained age 60, and then granted retroactively, the applicant was never given an opportunity to decline to participate in the SBP prior to reaching eligibility for retired pay.  Therefore, he was automatically enrolled in the SBP and the debt is valid.

2.  The applicant is already drawing sufficient VA compensation to offset his SBP benefits and his spouse would get DIC rather than SBP at his death.  Since she will not receive SBP upon the applicant’s death, she would instead receive a refund of all SBP premiums paid.  

3.  However, the applicant’s spouse’s concurrence would have been required for him to decline to participate in the SBP had he applied for retired pay in a timely manner.  She has indicated that she does not desire now to concur in his request to disenroll from the SBP.  Therefore, it appears that it would not be appropriate to correct his records to show that he declined to participate in the SBP.

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

__RVO__  __RTD__  __KWL__  DENY APPLICATION

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

INDEX

CASE ID	AR2002070398	
SUFFIX		
RECON		
DATE BOARDED	2002/07/25	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.