PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           6 August 2002
	DOCKET NUMBER:   AR2002071960

	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	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Ms. Paula Mokulis		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 records be corrected to show his spouse-only Survivor Benefit Plan (SBP) coverage was reinstated but not Supplemental SBP (SSBP).  

3.  The applicant states that in February 2002 he sent in the form requesting reinstatement of his SBP but he did not want any SSBP.  The sections on the form were very misleading.  He provides a Survivor Benefit Plan Remarriage Election Certificate, DFAS-CL Form 1772/11a; his retiree account statements for the months of April and May 2002; and his spouse’s concurrence with this correction as supporting evidence.

4.  The applicant's military records show that he enlisted in the Regular Army on  4 January 1952.  He retired on 1 February 1972.  On 1 August 1973, he enrolled in the SBP for spouse-only coverage, reduced base amount.  His base amount was increased in February 1981.  Apparently, his SBP was suspended on an unknown date for an unknown reason.

5.  Apparently, the applicant remarried on 2 January 2001.  On 11 February 2002, he completed a DFAS-CL Form 1772/11a.  On this form he checked that he requested resumption of his spouse coverage and that he elected, in the Supplemental Spouse Election block, SSBP at the 55 percent level.  

6.  Election of the SSBP increased the applicant’s SBP monthly costs from $95.20 (spouse only cost) to an additional $209.16 (supplemental cost).

7.  Public Law 92-425, enacted 21 September 1972 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. It declared a 12-month Open Season for those members who retired prior to enactment of the law.

8.  Public Law 94-496, enacted 14 October 1976 but effective 1 October 1976 suspended spouse costs if marriage ends in death or divorce.  Spouse costs would resume if the member remarried.

9.  Public Law 99-145, enacted 8 November 1985 permitted a previously participating retiree upon remarriage to elect not to resume spouse coverage or to increase reduced coverage for the latter spouse.

10.  Public Law 101-189, enacted 29 November 1989, established the SSBP (effective 1 October 1991).  The SSBP annuity (5, 10, 15 or 20 percent of full retired pay) would be paid in addition to the standard 35 percent-tier payment for surviving spouses age 62 and older.  

11.  The SBP Counselor Training Manual briefs that the SBP, an annuity program subsidized by the Government, provides a survivor 55 percent of a participant’s military retired pay.  The after-62 benefit amount drops to 35 percent of the retired pay because Social Security is meant to provide the additional coverage to bring the survivor support level back up to the 55 percent level.  SSBP provides a means to increase the after-62 benefit to 40, 45, 50 or 55 percent of the retired pay.  It is not a government subsidy.  It is voluntary, a court cannot order it, and no spousal concurrence is required.  SSBP cost is age-based, unlike SBP.  

CONCLUSIONS:

1.  There is no evidence of Government error in this case.  The applicant provides evidence to show that he did request SSBP in February 2002, albeit perhaps erroneously. 

2.  However, the SSBP is not a Government subsidized program and in that regard is more like a commercial annuity program.  Although her concurrence is not mandatory, the applicant’s spouse has concurred in his request to terminate the SSBP.  The Board believes that it would be appropriate to correct the records to show the applicant did not request SSBP.

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

RECOMMENDATION:

1.  That the DFAS-CL Form 1772/11a completed by the applicant on 11 February 2002 be amended to show he did not elect SSBP.

2.  That any SSBP premiums paid by the applicant be refunded.

BOARD VOTE:  

___LLS__  __PM___  __DPH__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Luther L. Santiful     _
		        CHAIRPERSON

INDEX

CASE ID	AR2002071960	
SUFFIX		
RECON		
DATE BOARDED	2002/08/06	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.