MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 June 2000                   
	DOCKET NUMBER:   AR1999031583

	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 Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Orville W. Troesch, Jr.		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Ms. Margaret V. Thompson		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 he receive a refund of his Survivor Benefit Plan (SBP) premiums for the period November 1998 through February 1999.

APPLICANT STATES:  That neither he nor his spouse were provided proper counseling regarding SBP options available upon their marriage.  The Defense Finance and Accounting Service (DFAS) automatically enrolled her when she did not desire enrollment.

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

That, after having had prior enlisted service in the U. S. Air Force and the Regular Army, he was commissioned in the U. S. Army Reserve on                   14 September 1971.  He entered active duty in the Active Guard/Reserve (AGR) Program on 1 August 1982.  He retired for length of service on 1 November 1992.  Apparently at this time he elected to participate in the SBP for spouse and child coverage.  

On an unknown date the applicant divorced and the spouse portion of his SBP coverage was suspended.  The applicant and his current spouse married on     25 October 1997.  In October 1998, apparently as a result of reading an article in the “Army Echoes,” he notified DFAS that he had remarried.  He sent DFAS a copy of his marriage certificate in November 1998.  Because he had not requested not to resume spouse coverage, DFAS resumed such coverage as soon as they received his marriage certificate, effective October 1998.  On        17 February 1999, the applicant and his spouse notified DFAS that they did not desire SBP coverage and DFAS stopped the coverage effective March 1999.

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.  Elections are made by category, not by name, and changes in SBP options are not authorized except in specific instances or authorized by law.

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.  Changes must be made prior to the first anniversary of remarriage or else the previously suspended coverage resumes by default on the first day of the month following the first anniversary of the remarriage, with costs owed from that date.

Public Law 105-85, enacted 18 November 1997, established an option to terminate SBP participation.  Members retired for more than 2 years as of         17 May 1998 were authorized a one-year opportunity (17 May 1998 – 16 May 1999) to disenroll (with spouse’s written concurrence, if appropriate).

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.  When the applicant initially enrolled in the SBP for spouse coverage, he made an irrevocable election.  Spousal concurrence is only required when SBP is declined.  Since the applicant never declined SBP spouse coverage, either at the time he initially enrolled or within one year of the date of his remarriage, DFAS acted properly when they resumed spouse coverage.  Counseling of the current spouse was not required.  

3.  The applicant requested disenrollment from the SBP, with his spouse’s concurrence, outside of the one-year window from the date of his remarriage but within the disenrollment period established by Public Law 105-85.  Therefore, DFAS properly disenrolled him when they received his request.

4.  The applicant was a senior commissioned officer.  At the time of his retirement he presumably received SBP instruction during his retirement briefings.  Even if he did not, it would be expected of an officer of his rank and experience in the Army to have some knowledge of the SBP.  If not, he would be expected to contact DFAS or retirement services to obtain information concerning the SBP.  Board notes that the applicant had received a copy of “Army Echoes” which has a listing of Retirement Services Officers (RSO) for each state, including Alaska.  The applicant should have taken responsibility upon himself to call his servicing RSO at this time (or, ideally, at the time of his remarriage), to determine how his new marital status would affect his retirement situation, to include SBP enrollment.

5.  More importantly, the applicant and his spouse enjoyed SBP spouse coverage from 25 October 1998 until March 1999 when DFAS stopped coverage. If the applicant had died after October 1998, his spouse would have been entitled to the SBP annuity.  The Board concludes that there would be no injustice in not refunding to the applicant the SBP premiums he paid for a period his spouse was covered by the SBP.

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

__owt___  __kan___  __mvt___  DENY APPLICATION

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

INDEX

CASE ID	AR1999031583	
SUFFIX		
RECON		
DATE BOARDED	20000615	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.00	
2.		
3.		
4.		
5.		
6.