APPLICANT REQUESTS: In effect, to be released from the SBP (Survivor Benefit Plan).
APPLICANT STATES: In effect, that he was not given the opportunity to accept or decline enrollment in SBP.
EVIDENCE OF RECORD: The applicant's military records show:
The applicants military records show that he enlisted in the Regular Army on 25 June 1971 and through subsequent reenlistments remained on active duty until his retirement. On 13 January 1992, the applicant was counseled on SBP at Fort Benning, Georgia and elected to decline SBP participation because at that time he was unmarried without dependents. On 21 February 1992, the applicants military record indicates that he married. However, failed to make the Retirement Services Office (RSO) aware of this changed marital status so that they could comply with the law requiring counseling of spouses of retiring members. The absence of spouse concurrence in this case should have resulted in immediate automatic full spouse coverage. This did not result because DFAS-IN thought the applicant was unmarried. On 1 March 1992, he retired from active duty, in pay grade E-7, with more than 20 years of creditable active service.
On 18 September 1995, the applicant wrote DFAS-CL and informed them of his marriage. He provided DFAS-CL with the marriage certificate, and requested that his spouse be named beneficiary for his final retired pay. Upon learning that the applicant was married on the date of retirement, but spousal concurrence with an election to decline was not provided, DFAS-CL properly enrolled the applicant in SBP with automatic full spouse coverage.
When DFAS-CL notified the applicant of the automatic enrollment action. On 17 November 1995, the applicant wrote DFAS-CL requesting immediate disenrollment, citing that he had not requested spouse coverage. Based on the applicants request, a pay technician erroneously disenrolled him from the plan. He had paid only 2 months SBP premiums at that time. At this time the applicant is not currently enrolled or paying SBP costs.
On 30 November 1995, the applicant appealed to this Board for correction of his military record.
Public Law 92-425, the SBP, enacted 21 September 1972, provided those military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. Military members who were retired before 21 September 1972 had until 20 September 1974 to apply for coverage under the SBP.
In the processing of this case, a staff advisory opinion was obtained from the SBP board. The board recommended that the applicant request be disapproved, because of the time that has passed since retirement.
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. 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.
2. The evidence of record shows that the applicant was married on the date of retirement and that even though he took specific actions impacting other entitlement areas (i.e., BAQ with dependents), he failed to notify the RSO of his marriage, even though he had received proper counseling.
3. The Army Echoes repeats in each issue that soldiers are responsible to keep the Pay Center informed of all changes in marital status. The applicant record should be changed to reflect that the applicant was married on the date of retirement.
4. The applicant has submitted neither probative evidence nor a convincing argument in support of the request.
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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