MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 January 1999                   
	DOCKET NUMBER:   AC98-07083
				   AR1999015636

	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.

APPLICANT STATES:  That his wife, who is Korean, did not understand what the SBP was when she signed the paperwork concurring in his declination of coverage.  She now understands and would like the applicant to obtain coverage for her.

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

He was inducted into the Army on 13 December 1967 and had continuous service until his retirement, in pay grade E-8, on 31 August 1992 after over 24 years of creditable active service.

At the time of his retirement, the applicant elected to decline SBP coverage.  His spouse signed a statement that she received information that explained the options available and the effects of those options.

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.  An election, once made, is irrevocable.

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.  It noted that he declined SBP coverage and his spouse concurred.  He has presented no evidence to support his claim that his spouse did not understand what she was signing at the time.

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 properly declined SBP coverage at the time of his retirement and his spouse concurred.  There is no evidence of government error.

3.  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. 

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

__JEV___  __MKP__  __JHK__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-07083/AR1999015636	
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.