MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            23 March 2000
	DOCKET NUMBER:   AR1999030420

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Roger Able		Member	
	Mr. James E. Anderholm		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 he be released from the Survivor Benefit Plan (SBP) and that he be reimbursed the premiums that have been deducted from his retired pay to date.  

APPLICANT STATES:  In effect, that the SBP was not fully explained to him and that had he understood the program he would have not enrolled.  He claims that his wife and he do not want to participate in the SBP and they both feel that they could do better by investing the money themselves.  

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

He served with the Army National Guard (ARNG) of the State of Tennessee from 11 July 1987 until his discharge and transfer to the Permanent Disability Retired List (PDRL) on 1 December 1998.  

On 1 March 1997, while traveling from his home to a ARNG drill in Humbolt, Tennessee, the applicant’s truck ran off the road into a ditch approximately 
35 feet deep, heavy rains had washed away the road.  The applicant was pinned in his vehicle for about an hour, at which time he was cut out of the vehicle and transported to the hospital.  It was discovered that he had serious injuries to his leg, knee, hip, chest, and eye.  The injury was determined to be in the line of duty.

The record contains a National Guard Bureau Form 22 (Report of Separation and Record of Service) which shows that he was honorably discharged from the ARNG, on 1 December 1998, in the rank of sergeant first class/E-7, and placed on the PDRL.  At the time of his discharge he had completed 15 years, 7 months, and 5 days of Reserve Component service, 4 years, 5 months, and 11 days of active military service, and a total of 20 years and 16 days of service credible for retired pay.  

A member of the Board’s staff contacted an action officer of the Army Retirement Services Office, in order to determine the applicant’s SBP status.  It was established that the applicant had elected full spouse SBP coverage at the time he was placed on the PDRL.  In addition, a review of the applicant’s service record and the SBP elections file revealed no evidence that would indicate that the applicant was improperly briefed on the program during his retirement processing.

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.  The election made by the soldier is irrevocable.

Survivor Benefit Plan (SBP) Disenrollment is governed by Section 641 of the 1998 DOD Authorization Act, which gives retirees who elect SBP a one-year period to disenroll (void their election), beginning on the second anniversary of commencement of retired pay.  Spousal concurrence is mandatory for disenrollment and once disenrolled, retirees are barred from ever reenrolling in 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.  The evidence of record shows that the applicant elected SBP participation at the time he was notified of his eligibility for retired pay in 1998.  At that time he acknowledged in writing that an election once made was irrevocable.  There is neither evidence, nor has the applicant provided documentation to show that he was improperly counseled; therefore, administrative regularity is presumed and the Board found no basis for relief in this case.

2.  The Board notes that since the applicant’s retirement on 1 December 1998, his spouse has been covered by the SBP, and had he died his surviving spouse would have received an SBP annuity.  Thus, the Board finds no reason to reimburse the applicant SBP premiums he has paid to date.  

3.  The Board would like to advise the applicant that the 1998 DOD Authorization Act, does give retirees who elect SBP a one-year period to disenroll (void their election), beginning on the second anniversary of commencement of retired pay. Under these provisions the applicant will have the opportunity to void his election in the SBP and disenroll beginning on 1 December 2000.  Spousal concurrence is mandatory for disenrollment and once disenrolled, retirees are barred from ever reenrolling in SBP.  However, even if the applicant takes this action, it will not entitle him to be reimbursed for premiums he has paid while he was enrolled in the SBP.

4.  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 which would satisfy the aforementioned requirement.

5.  In view of the foregoing, there exists 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

__slp____  __ja  ____  __ra____  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030420	
SUFFIX		
RECON		
DATE BOARDED	2000/03/23	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1998/12/01	
DISCHARGE AUTHORITY	NGR 600-200	
DISCHARGE REASON	PDRL	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 346	137.0000	
2.		
3.		
4.		
5.		
6.