MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:           27 January 1999                   
	DOCKET NUMBER:   AC98-06579
				   AR1999015534

	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. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. John H. Kern		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 his records be corrected to show that he elected Survivor Benefit Plan (SBP) “spouse” coverage at the time of his remarriage in 1993.

APPLICANT STATES:  That, upon his remarriage, he submitted to the personnel office at Fort Huachuca, AZ the paperwork needed to enroll in the SBP at “spouse” coverage.  He was told that she was enrolled and nothing else was needed.  In 1996, he noticed that his Retiree Account Statement included the statement “No SBP election is reflected on your account.”  He called the Defense Finance and Accounting Service (DFAS) and was told they had no paperwork showing he was married.  After he sent them a copy of the marriage certificate, he was told that he had not elected SBP within one year of his marriage and it was too late.

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

After having had prior service, the applicant reenlisted in the Regular Army on   27 June 1967 and had continuous service until his retirement, in pay grade E-7, on 31 December 1982.  At that time he was not married and elected SBP coverage for “dependent children only.”

The applicant and his current spouse were married on 20 November 1993.

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.  A person who is not married upon becoming eligible to participate in the SBP but who later marries may elect to participate in the SBP.  Such an election must be written and received by the Secretary concerned within one year after the date on which that person marries.

Public Law 105-261 (Fiscal Year 1999 Department of Defense Authorization Act), has established a one-year open enrollment period for SBP beginning 1 March 1999.  Elections must be made voluntarily; spouse concurrence is not required.  The retiree must survive two years from the effective date (the first day of the month following receipt of the application by the Defense Finance and Accounting Service – Cleveland Center) in order that an annuity be payable.  Otherwise, an election is void and a lump sum refund of premiums will be paid to the beneficiary.  Premiums must be paid equal to the sum of the total amount of SBP premiums that would have been collected since the date the retiree was first eligible to enroll; plus interest on that amount, plus any additional amount determined by the Secretary.

In the processing of this case, an advisory opinion was obtained from the Army Retirement Services.  That opinion recommended disapproval of the applicant’s
request.  The opinion noted that between November 1993 when the applicant states he was assured by personnel at Fort Huachuca that he was enrolled in the SBP and January 1996 when he states he was first made aware that he was not enrolled, no costs had been paid and there is no evidence of inquiries/efforts by the retiree on this matter.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, 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 the aforementioned requirement.

2.	The applicant presents no evidence of government administrative error.  

3.	 Retiree Account Statements are sent out routinely when changes are made to a retiree’s pay.  As a senior non-commissioned officer, the applicant should have realized soon after he was married that no SBP premiums had been deducted from his pay and made his inquiries at that time.

4.  However, a one-year open-enrollment season has been established, to begin 1 March 1999.  The applicant should contact his nearest Retirement Services Officer (RSO) for assistance in enrolling in the SBP during this time.  A copy of the latest RSO directory is attached for his use. 

5.  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

___JEV__  ___MKP_  ___JHK     DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-06579/AR1999015534	
SUFFIX		
RECON		
DATE BOARDED	19990127	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.00	
2.		
3.		
4.		
5.		
6.