2.  The applicant requests correction of his military records by canceling his Survivor Benefit Plan (SBP) participation for “person with insurable interest -daughter” and restitution of payments that were withheld from his retirement annuity.  He states, in effect, that when he filed for retirement benefits, he was told that he must have SBP coverage.

3.  The applicant’s military records show he was born on 4 December 1934.  He was a member of the Army National Guard of Pennsylvania.  On 8 May 1994, the date he elected his SBP coverage, he was divorced with no dependent children.  It was apparently at this time that the applicant was informed the he must have SBP coverage, so he chose one daughter as a person with insurable interest.  On 4 December 1994, upon reaching age 60, the applicant was placed on the retired list.

4.  On a date unknown, the applicant contacted DFAS and notified them to drop SBP coverage completely.  This was done effective 9 May 1995.

5.  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.  However, surviving children are only entitled to SBP payments until reaching age 22 in certain cases.  Changes in SBP options are not authorized except in specific instances, or authorized by law.

6.  Public Law 95-397, effective 1 October 1979, extended eligibility for coverage under the SBP to members and former members of the Reserve Components (RC) who had 20 or more years of qualifying service, but had not reached age 60, the age at which they would be eligible for retired pay.

7.  In the processing of this case, a staff advisory opinion was obtained from the Headquarters Army Retirement Services, which recommended no action on the applicant’s request.  The opinion acknowledges that the applicant does not currently participate in SBP but that in accordance with Public Law 103-337,       5 October 1994, no cost refund is due a member who withdraws that election.  However, a further advisory opinion by DFAS-CL notes the applicant was not properly counseled at the time he elected SBP coverage, that a correction is warranted, and that it has no objection to a correction of records showing that he declined coverage as he had no eligible beneficiaries.




CONCLUSIONS:

1.  The evidence of record shows that in May 1994 the applicant elected SBP coverage for his daughter, a person with insurable interest, based upon erroneous guidance or improper counseling upon which to complete his application for retired pay at age 60 and SBP options.

2.  The SBP election, based upon erroneous guidance or improper counseling, resulted in a forfeiture of some monies from the applicant’s retired pay from January 1995 to May 1995, when DFAS-CL discontinued his SBP participation.

3.  There appears to be no evidence of negligence on the part of the applicant.  Therefore, in view of the foregoing, findings, conclusions and the advisory opinions, it would be appropriate to correct the records as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

    a.  showing that the individual concerned declined to participate in the SBP at the time of his retirement on 4 December 1994; and

    b.  conducting a complete audit of the applicant’s account with an immediate cost refund of any and all SBP deductions withheld from his retired pay as a result of this correction.

BOARD VOTE:

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION




		                              				 	
                      	                          CHAIRPERSON