MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           16 May 2000                   
	DOCKET NUMBER:   AR1999031795

	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	
	Mr. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian 		Chairperson	
	Mr. Van B. Cunningham 		Member	
	Mr. Lester Echols 		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 disenroll from the Survivor Benefit Plan (SBP); that the coverage is still in effect; and that she be paid an SBP annuity from 12 July 1999.

APPLICANT STATES:  That the DD Form 2666-2, SBP Termination Request, was submitted “under false pretense.”

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

He was born on 20 May 1924.  On 15 October 1942, he was inducted into the Army of the United States and served until honorably discharged on 4 December 1945.  He then served in the US Air Force Reserve and Army National Guard until honorably discharged and transferred to the US Army Reserve with a total of 24 years, 3 months, and 3 days of creditable service on 7 February 1967.  On the anniversary of his 60th birthday (20 May 1984), he was placed on the retired list as a first lieutenant and began receiving retired pay. 

At the time he made application for retired pay, the FSM elected full SBP coverage for his spouse and dependent child.  On 22 October 1998, the FSM and the applicant elected to terminate SBP coverage utilizing DD Form 2666-2.  Both the FSM and the applicant signed the termination request and it was properly notarized.  On 12 July 1999, the FSM died.

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.  The election made by the member was irrevocable.

Public Law 95-397, effective 1 October 1978, extended eligibility for coverage under the Survivor Benefit Plan to members and former members of the Reserve Components who had 20 or more years of qualifying service, but had not reached age 60, the age at which they would be eligible for retired pay.

Public Law 105-85, effective 18 November 1997, established the option to terminate SBP participation by authorizing a 1-year opportunity (17 May 1998 to 16 May 1999) to disenroll.  It required the written concurrence of the service member’s spouse.

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 FSM elected SBP coverage for his spouse [applicant] and dependent child upon his eligibility to receive retired pay on 20 May 1984.
2.  On 22 October 1998, the FSM and the applicant terminated SBP coverage by completing DD Form 2666-2, signing the form, and having their signatures witnessed and notarized.  In so doing, the FSM and applicant acknowledged that they were not entitled to a refund of any costs already paid for SBP coverage, nor would SBP benefits be paid upon the death of the FSM.  They also acknowledged having signed the termination request of their own free will.

3.  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 the aforementioned requirement.

4.  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

__aao___  __vbc___  __le_____  DENY APPLICATION

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

INDEX

CASE ID	AR1999031795	
SUFFIX		
RECON		
DATE BOARDED	20000516	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	137.0400	
2.		
3.		
4.		
5.		
6.