PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           12 March 2002                   
	DOCKET NUMBER:   AR2001066024

	I certify that hereinafter is recorded the true and complete record of the proceedings 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. Irene N. Wheelwright		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Ms. Gail J. Wire		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his Survivor Benefit Plan (SBP) enrollment be terminated.  

3.  The applicant states that when he retired from the U. S. Postal Service (USPS) on 3 January 1999 he decided to combine his two retirements and notified the required offices.  His military retired pay stopped and the Office of Personnel Management (OPM) paid him his correct retired pay.  However, sometime in 1999 the Defense Finance and Accounting Service (DFAS) started sending him monthly bills for unpaid SBP premiums.  He had known about the one-time opportunity to terminate his enrollment but did not believe he had to submit a request as he knew he was retiring from the Postal Service during the one-year opportunity to do so and would be discontinuing his military retired pay. He believed that his choosing to terminate all of his Army pay benefits on            3 January 1999 included the SBP.  His spouse has provided her concurrence with his request to terminate the SBP.

4.  The applicant’s military records show that he entered the Army in 1956 as an enlisted member.  He was appointed a warrant officer in August 1967.  He retired on 1 September 1976.  At that time he elected to participate in the SBP for spouse only coverage, reduced base amount.  He apparently was employed by the USPS soon thereafter.  He retired from the USPS on 2 January 1999, waiving military retired pay in favor of civil service retired pay. 

5.  OPM notified DFAS that the applicant did not elect annuity coverage under his civil service retirement.

6.  Public Law 92-425, enacted 21 September 1972, established the SBP.  It 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, was permanent and irrevocable in the category that was elected. 

7.  Title 10, U. S. Code, section 1450(d) states, in effect, that if a retiree waives his military retired pay for the purpose of receiving civil service retired pay, an SBP annuity will be payable if that retiree does not notify OPM that he desires any spouse surviving him to receive a civil service annuity.

8.  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 the 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.  The effective date of termination is the first day of the first calendar month following the month in which the election is received by the Secretary concerned.

CONCLUSIONS:

1.  It appears the applicant may not have been properly counseled concerning his civil service SBP benefits/obligations prior to his civil service retirement.  It appears that by the time he learned that since he did not elect civil service SBP his military SBP remained in effect his one-year window of opportunity to terminate his enrollment in the SBP ended.

2.  The applicant believed his choosing to terminate all of his Army pay benefits on 3 January 1999 included the SBP.  The Board concludes that it would be equitable to show that he properly requested termination of the SBP under the provisions of Public Law 105-85 on 3 January 1999 and that his request was received in the appropriate office in January 1999, to be effective 1 February 1999, the first day of the first calendar month following the month in which it was received.  SBP premiums for the month of January 1999 would still be due.

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant properly requested termination of his SBP under the provisions of Public Law 105-85 on 3 January 1999 and that his request was received in the appropriate office in January 1999 to be effective     1 February 1999.  

2.  That the applicant be advised the Defense Finance and Accounting Service will be instructed to collect any SBP costs due.  

BOARD VOTE:  

__inw___  __rjw___  __gjw___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Irene N. Wheelwright
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001066024	
SUFFIX		
RECON		
DATE BOARDED	20020312	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.03	
2.		
3.		
4.		
5.		
6.