Author: WoodsHN

ABCMR Memorandum of                                                               AC98-06351
Consideration (cont)                                                                       AR1999015690

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           21 January 1999                   
	DOCKET NUMBER:   AC98-06351
				   AR1999015690

	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:

| Ms. Karen J. Newsome | | Chairperson
| Mr. Fred N. Eichorn | | Member
| Mr. John P. Infante | | 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 his records be corrected to reflect that he never elected Survivor Benefit Plan (SBP) coverage for “spouse” and that he be given a refund of all premiums deducted from his retired pay.

APPLICANT STATES:  He was never counseled properly.

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

He enlisted in the Regular Army on 21 August 1963 and had continuous service until his retirement on 31 October 1983, in pay grade E-7, after completing 20 years of creditable active service.

At the time of his retirement he was divorced.  He had elected SBP coverage for “dependent children only.”

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.

Title 10, U. S. Code, section 1448 provides that a person marrying after retirement may elect to participate in the SBP.  Such an election may not be revoked except to provide for former spouse coverage.

In the processing of this case, an advisory opinion was obtained from the Chief, Army Retirement Services.  That opinion noted that information from the applicant’s finance file shows he married his current spouse on 2 June 1995 and enrolled her in the SBP (the enrollment form is not available) effective 2 June 1996.  No evidence of government administrative error regarding improper counseling was found.  The opinion also noted that there is a one-time, one-year opportunity for disenrollment (17 May 1998 – 16 May 1999) available to the applicant.

The applicant rebutted this advisory opinion.  He noted that when he initiated the process to enroll his current spouse, the Finance Center asked him about his ex-wife’s enrollment.  After several attempts to solve this problem, he and his current spouse decided in April 1996 that they did not wish to be in the SBP and the appropriate action was initiated prior to the effective date of 2 June 1996.  He did get a copy of the DD Form 2656-2 referenced in the advisory opinion and has submitted it.  However, he still feels he should have been disenrolled prior to the effective date and that he should be reimbursed all monies withheld from him from that 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 Board can only take action to correct an error or an injustice.  The applicant provides no evidence to show he was not properly counseled. 

3.	The Board empathizes with the applicant’s current job that requires extensive travel for prolonged periods and the fact that, upon his return home, reading the “Army Echoes” is a low priority.  However, he is a retired senior non-commissioned officer who has a responsibility to himself to get all information possible before making a financial decision that would require the withholding of an amount of monies from any pay/retired pay check.

4.  The Board believes that the applicant attempted to disenroll from the SBP prior to the effective date of 2 June 1996; however, the law is very clear that once the election is made, it may not be revoked except in one specific instance.

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

__KJN___  __FNE___  __JPI___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID | AC98-06351/AR1999015690
SUFFIX |
RECON |
DATE BOARDED | 19990121
TYPE OF DISCHARGE |
DATE OF DISCHARGE |
DISCHARGE AUTHORITY |
DISCHARGE REASON |
BOARD DECISION | (DENY)
REVIEW AUTHORITY |
ISSUES         1. | 137.00
2. |
3. |
4. |
5. |
6. |