APPLICANT REQUESTS: That his participation in the Survivor Benefit Plan (SBP) be canceled.
APPLICANT STATES: In effect, that he made his decision to retire on short notice when an opportunity for post-service employment came up. He notes that things started to move very quickly and that he was told briefly about the Survivors Benefits Plan during retirement processing at Fort Dix, New Jersey and elected to participate only because he believed if he refused the SBP that [his} spouse would have to be present to sign a waiver and she was already relocating in Florida. He indicates he did not see [any] other solution but to accept the SBP. Subsequent to his retirement, and after further researching the SBP, he and his spouse have decided it would be to their benefit to cancel the SBP as there is no way that [his] spouse would be able to survive on the benefits provided by the SBP.
EVIDENCE OF RECORD: The applicant's military records show:
He served an initial period of active duty with the Marine Corps between 1966 and 1969. After serving with the Marine Corps and Army Reserve he enlisted in the Regular Army in November 1976.
During more than 18 years of continuous active duty in the Army he performed duties in a variety of infantry positions, including two years as a drill sergeant and nearly three years as a first sergeant at Fort Drum, New York. He was promoted to pay grade E-8 in October 1989.
In 1993 he was assigned duties with the ROTC element at Lock Haven University in Pennsylvania. On 23 August 1994 he applied for voluntary retirement to be effective 31 December 1994. His request was approved on 11 October 1994 and on
31 October 1994, after consulting with the retirement services officer at Fort Dix, he elected full SBP coverage for his spouse and children.
His application to the Board is dated 16 February 1996.
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. Spousal concurrence is required when a soldier elects less than full SBP coverage for his spouse. Spousal concurrence is not required, however, to exempt children from coverage. The election made by the soldier was irrevocable.
In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from the Armys Retirement Services Office. The opinion noted that the applicant had not provided any evidence of error or injustice and, in effect, that his contention he was not aware of the ramifications of his decision were unsupported. They recommended his request be denied.
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 confirms the applicant elected to fully participate in the SBP with coverage for his spouse and children.
2. In effect, the applicant maintains that he elected SPB coverage because many things were happening fast and that if he refused the SBP his spouse would have to be present to sign. However, the fact that he elected coverage for both spouse and child, rather than spouse only, tends to support a conclusion that he had sufficient information, and understood enough about the SBP to make an election beyond the spouse only election which would have required his wifes concurrence.
3. The applicants realization, more than a year after his retirement date, that it would be more beneficial to us to cancel the SBP is not sufficient to conclude that an error or injustice occurred in the processing of his retirement nor serve as a basis to now revoke that election.
4. 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 the aforementioned requirement.
5. 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
DENY APPLICATION
Karl F. Schneider
Acting Director
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