MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            27 March 2003                  
	DOCKET NUMBER:   AR2003083512

	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 L. Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Raymond V. O'Connor		Member	
	Ms. Eloise C. Prendergast		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 the effective date of his Survivor Benefit Plan (SBP) coverage be changed from 1 December 1999 to 1 July 2002.

APPLICANT STATES:  That he remarried on 4 November 1998 and submitted an SBP election on 18 November 1998.  He knew it would be one year until it became effective so he forgot about it.  On 8 April 2002, he had major heart surgery.  When he recovered, he inquired about his SBP and the retired military pay section told him they did not have an SBP option on file and, had he died, his wife would not have received anything.  He resubmitted a DD Form 1883 (Survivor Benefit Plan Election Certificate) on 5 July 2002.  He assumed it would be effective 1 July 2002.  In August 2002, his pay statement showed that $396.65 would be deducted from his pay and showed a debt balance of $2,634.16.  It is unfair that he has to pay for coverage he did not receive.  He won't live to pay this off.  Had he been informed of the debt, he would have cancelled his SBP election.

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

He was born on   After having had prior enlisted service, he was  appointed a warrant officer (Unit Personnel Technician) in the Army National Guard on 22 December 1953.  He was promoted to Chief Warrant Officer Four on 22 December 1968.  He performed duties primarily as a personnel technician throughout his service as a warrant officer and exclusively from 1968 until his retirement.

The applicant's notification of eligibility for retired pay is dated 22 January 1970.

On 9 July 1979, the applicant completed a DD Form 1883 (obtained from the Defense Finance and Accounting Service (DFAS)).  In section II (Marital, Dependency, and Election Status), he elected to participate in the Reserve Component SBP (RCSBP) for spouse only coverage, full base amount, option C. The DD Form 1883 states in this section, "IMPORTANT:  The decision you make with respect to participation in the Survivor Benefit Plan is a permanent irrevocable decision.  Please consider your decision and its effect very carefully."

The applicant was released from the Army National Guard on 29 May 1986 and transferred to the Retired Reserve.

Records at DFAS indicate the applicant informed them on 5 February 1998 that his spouse died.  He apparently remarried on 4 November 1998.  There is no record at DFAS of a new DD Form 1883 prepared on or about 18 November 1998.  DFAS's next entry shows that he informed them in July 2002 that he remarried . 

Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Elections are made by category, not by name.  An election, once made, is irrevocable.

Public Law 94-496, enacted 14 October 1976 but effective 1 October 1976, provided that spouse costs would be suspended if marriage ends in death or divorce.  It also reduced the waiting period for new spouse eligibility from 2 years to 1 year following post-retirement marriage.

Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A)  elect to decline enrollment and choose at age 60 whether to start SBP participation; (B)  elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member's retired pay.

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.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The applicant was a senior warrant officer who served in a Reserve Component in active status during the time the SBP and the RCSBP were established.  Moreover, the DD Form 1883 he completed in July 1979 clearly indicated that elections were made by category and that, once made, were irrevocable.  There was no requirement for him to complete a new DD Form 1883 upon his remarriage and it appears DFAS did not receive this new DD Form 1883.

3.  The applicant should have noticed at least on his 2000 and 2001 retiree pay account statements that SBP premiums were not being deducted.  He had a responsibility to himself and his new spouse not to wait until after he had life-threatening surgery to inquire about it.

4.  Notwithstanding what an unknown person at DFAS may have told the applicant about his spouse not receiving the annuity if he had died, she would have been eligible to receive the annuity.  DFAS had the July 1979 DD Form 1883 even if the applicant did not keep his personal copy of it.  His spouse had the protection of the SBP after the first anniversary of their marriage; that protection must be paid for.

5.  It is regrettable that the applicant did not check the status of his SBP premiums sooner.  However, even if he had been informed of the amount of the debt in July 2002 he could not have cancelled the SBP.  He had made an irrevocable election.

6.  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

__jhl___  __rvo___  __ecp___      DENY APPLICATION

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

INDEX

CASE ID	AR2003083512	
SUFFIX		
RECON		
DATE BOARDED	20030327	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	137.00	
2.		
3.		
4.		
5.		
6.