APPLICANT REQUESTS: In effect, disenrollment from SBP (Survivor Benefit Plan) participation.
APPLICANT STATES: In effect, that he did not understand the SBP process; that he was not advised that his election was irrevocable; that he forgot about his SBP participation until his premiums were deducted from his retired pay.
EVIDENCE OF RECORD: The applicant's military records show:
He was born on 22 April 1933. He enlisted in the Army National Guard on 27 February 1961 with prior service in the Active and Reserve Components. On 14 September 1979, in conjunction with his notification of eligibility for retired pay at age 60, he executed a DD Form 1883 (Survivor Benefit Plan Election Certificate) electing Option C, (immediate coverage). The result of this election was a coverage of his spouse should he die before age 60. However, premiums were not due until the applicant was in receipt of his retired pay. He acknowledged in writing that participation in the Plan was permanent and irrevocable. His signature was witnessed by the retirement services officer. He was placed in the Retired Reserve on 26 February 1986 in pay grade E-7.
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. The election made by the soldier was irrevocable.
Public Law 95-397, effective 1 October 1978, extended eligibility for coverage under the SBP to members and former members of the Reserve Components 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.
In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from the Defense Finance and Accounting Service (DFAS) which advised that it would be possible to correct the applicants record if it can be established that he was not properly counseled.
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(s), it is concluded:
1. The evidence of record shows that the applicant elected SBP participation at the time he was notified of his eligibility for retired pay at age 60 in 1979. At that time he acknowledged in writing that an election once made was irrevocable.
2. The applicants allegation that he does not remember electing SBP participation does not provide a basis for granting the relief requested.
3. There is neither evidence, nor has the applicant provided documentation to show that he was improperly counseled; therefore, administrative regularity is presumed.
4. The Board notes that during the period 14 September 1979-22 April 1983, the applicants spouse was covered by the SBP, and had he died before reaching age 60 his surviving spouse would have received an SBP annuity.
5. 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 which would satisfy the aforementioned requirement.
6. In view of the foregoing, there exists no basis for granting the applicants 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
DENY APPLICATION
Karl F. Schneider
Acting Director
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