MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 December 2001                   
	DOCKET NUMBER:   AR2001062864

	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:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Ronald E. Blakely		Member	
	Mr. Thomas E. O’Shaughnessy, Jr.		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 show he declined to participate in the Survivor Benefit Plan (SBP) and that all premiums deducted from his retired pay, plus interest, be refunded to him.

APPLICANT STATES:  That at the time of his retirement he did not sign an authorization to deduct (SBP) payments from his retired pay.  He advised the Army Finance Center in 1972 and again in 1977 that he did not give an authorization for SBP premiums to be deducted from his retired pay.  Since the deductions continued, he assumed that this was mandatory and that the deductions could not be discontinued.  In November 2000, an attorney told him that SBP is not a mandatory deduction and has to be authorized.  He provides an undated letter from the Defense Finance and Accounting Service (DFAS) advising him to apply to the Board, a September 2000 SBP/RSFPP Premium Bill from DFAS, and a 3 January 1977 record of phone conversation as supporting evidence.

COUNSEL CONTENDS:  Counsel makes no additional contention.

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

He was born on 29 October 1932.  After having had prior service, he reenlisted in the Regular Army on 21 October 1954.  He retired on 1 November 1972.  His Record of Emergency Data, DA Form 41, undated, shows that he was married with one child.

The provided 3 January 1977 record of phone conversation, apparently between the applicant and someone at the Army Finance Center, states in part, “No election form was found in folder.  Mbr. stated that he was told he had to elect the plan and he did not.  He is sending a letter to explain what he was told and to req. a correction of records.”

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.  Coverage is automatic unless the member elects not to participate before the first day for which the member is eligible for retired pay.

Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from SBP.  Members retired for more than two years as of 17 May 1998 were 

authorized a one-year opportunity (17 May 1998 through 16 May 1999) to disenroll.  The spouse’s concurrence is required.  No premiums will be refunded to those who opt to disenroll.  This law was widely publicized in the Army retiree bulletin, Army Echoes.  

Public Law 105-261, enacted 17 October 1998, provides that, effective 1 October 2008, no premiums will be withheld after the later of:  (1) the 360th month for which the participant’s retired pay is reduced; or (2) the month during which the participant attains age 70.

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 applicant does not contend that he declined to participate in the SBP and he does not provide a document (normally at that time the Data for Payment of Retired Personnel, DA Form 4240) that confirms he declined to participate in the SBP.  He contends in his application that he did not sign an authorization to deduct SBP premiums from his retired pay.  The record of phone conversation noted “…he was told he had to elect the Plan and he did not.”  He does not provide the letter mentioned in the record of phone conversation wherein he was to explain what he was told (about the SBP).  

2.  It appears from the evidence that the applicant did not complete a document to decline to participate in the SBP.  Since he did not specifically decline to participate in the SBP, he was automatically, and properly under the law, enrolled.  Any eligible beneficiaries he had during the period he was (is) enrolled in the SBP would have received the SBP annuity had he died.  Unless Congress legislates another disenrollment opportunity, the applicant’s SBP premiums should automatically cease in October 2008.

3.  The applicant had a one-year opportunity to disenroll from the SBP effective 17 May 1998.  There is no evidence to show that he attempted to do so at that time.

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

__kak___  __reb___  __teo___  DENY APPLICATION

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

INDEX

CASE ID	AR2001062864	
SUFFIX		
RECON		
DATE BOARDED	20011211	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.03	
2.		
3.		
4.		
5.		
6.