MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           23 May 2002                   
	DOCKET NUMBER:   AR2001066266

	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:

	Mr. Mark D. Manning		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Karen Y. Fletcher		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 he declined to participate in the Survivor Benefit Plan (SBP) and that his spouse concurred in his declination.  He states that his duty station was in Lubbock, TX and he and his spouse lived in Lubbock.  His out-processing station was Fort Sill, OK.  His spouse was not able to accompany him to his SBP briefing.  He declined the SBP but, due to her not being there to sign her concurrence, it was forced upon him against his wishes.  His spouse provides her concurrence, stating she believes the SBP is a financially irresponsible program for their circumstances.  He provides no supporting evidence.

EVIDENCE OF RECORD:  The applicant's military records are not available.  Information contained herein was obtained from alternate sources.

The applicant retired on 1 January 2001.  On or about 6 November 2000, he completed a Data for Payment of Retired Personnel, DD Form 2656.  In section IX, item 26g he checked that he elected not to participate in the SBP.  His spouse did not sign in section XI concurring in his declination.  The instructions on the DD Form 2656 for item 26g stated that if this item is marked then section XI must be completed, if married.  The instructions for section XI state that the law requires that an otherwise eligible spouse concur if the member declines to elect SBP coverage.  The spouse’s concurrence must be obtained and dated on or after the date of the member’s election but before the retirement date.  If concurrence is not obtained when required, maximum coverage will be established for the spouse if appropriate.

On 14 November 2000, the Fort Sill, OK Personnel Operations Branch forwarded a letter to the applicant’s spouse, at his current mailing address, explaining the SBP, explaining that the applicant declined to participate in the SBP, and informing her that the SBP could not be declined without her concurrence.  A  pre-printed spouse concurrence statement was provided for her signature.  The statement was not returned to Fort Sill.  

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.  Retiring members and spouses were to be informed of the SBP options and effects.  Public Law 99-145, enacted 8 November 1986, required a spouse’s written concurrence for a retiring member’s election that provides less than the maximum spouse coverage.

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.  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.

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.  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 this requirement.

2.  The evidence of record shows the applicant completed the DD Form 2656 almost two months prior to his retirement date.  The instructions for completing the form clearly stated that his spouse’s concurrence in section XI was required if he declined to participate in the SBP.  In addition, Fort Sill forwarded a letter to his spouse informing her that he declined the SBP and, if she concurred in his declination, to sign and return an attached spouse concurrence statement.  The letter was sent to the applicant’s current mailing address.  It appears his spouse did not return the statement prior to his retirement and it appears he did not otherwise inquire into how his spouse’s concurrence was to be provided prior to his retirement date.

3.  The applicant retired on 1 January 2001.  Effective 1 January 2003, he will have a one-year opportunity to disenroll, with his spouse’s concurrence, from the SBP.  

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

__mdm___  __le____  __kyf___  DENY APPLICATION

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

INDEX

CASE ID	AR2001066266	
SUFFIX		
RECON		
DATE BOARDED	20020523	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.03	
2.		
3.		
4.		
5.		
6.