MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:  

		BOARD DATE:          28 October 2003                    
		DOCKET NUMBER:  AR2003088687

	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. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner 		Chairperson	
	Ms. Linda D. Simmons 		Member	
	Ms. Marla J. Troup 		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 the records of her deceased spouse, a former service member (FSM), be corrected to show he did not terminate his participation in the Survivor Benefit Plan (SBP).

APPLICANT STATES:  That her husband served over 38 years in the military.  She contends that she did not know or understand when she signed the DD Form 2656-2 (Survivor Benefit Plan (SBP) Termination Request) that she would not be eligible for survivor benefits if something happened to her husband.  She contends that her husband told her to sign the form which she did without reading or understanding what it meant.  She further contends that she did not realize that she had signed such a form until the Office of the Adjutant General obtained a copy from the Defense Finance and Accounting Service.  In support of her application, she submits a letter of support, dated 11 January 2003, from her son; a death certificate; the FSM's notification of eligibility for retired pay letter, dated 18 July 1975; the FSM's Army National Guard Retirement Points History Statement; the FSM's NGB [National Guard Bureau] Form 22 (Report of Separation and Record of Service); and the FSM's DD Form 2656-2.     

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

The FSM was born on 6 September 1936.  He enlisted in the Army National Guard on 21 September 1952 and was honorably discharged on 23 May 1992.  

The FSM's notification of eligibility for retired pay at age 60 (his 20-year letter) was prepared on 18 July 1975.  

On 25 August 1979, the FSM enrolled in the Reserve Component SBP for spouse and children coverage.  

He was placed on the retired list effective 6 September 1996.

On 20 April 1999, the FSM completed a DD Form 2656-2.  The applicant signed section IV, acknowledging that she read and understood the disadvantages and advantages of the FSM’s decision to terminate the SBP, that she understood that she would receive no SBP benefits upon the death of the FSM, and that she concurred with the FSM’s decision to terminate his participation in the SBP.  The FSM had signed section III, acknowledging that he read and understood the disadvantages and advantages of his decision to terminate the SBP, that SBP coverage would discontinue on the first day of the month following the month his request was received, and that no SBP benefits would be paid upon his death.

On 26 August 2002, the FSM died.

Public Law 92-245, 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.

Public Law 95-397, the Reserve Component SBP, 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.

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. 

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 evidence of record shows, and the applicant agrees, that she signed DD Form 2656-2 concurring with the FSM’s decision to terminate his participation in the SBP.

2.  The Board understands the FSM asked her to sign the DD Form 2656-2; however, the title of the DD Form 2656-2 is very clear – Survivor Benefit Plan (SBP) Termination Request.  The short section she was supposed to read before she signed the form was also very clear – she would receive no SBP benefits upon the death of the FSM.

3.  Regrettably, 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

RJW____  LDS____  MJT____  DENY APPLICATION

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

INDEX

CASE ID	AR2003088687	
SUFFIX		
RECON		
DATE BOARDED	20031028	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137.0000	
2.		
3.		
4.		
5.		
6.