RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 August 2006
      DOCKET NUMBER:  AR20060010139


      I certify that hereinafter is recorded the true and complete record
of the proceedings 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 L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Paul M. Smith                 |     |Chairperson          |
|     |Ms. Laverne M. Douglas            |     |Member               |
|     |Mr. Ronald D. Gant                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his records be corrected to show he
declined to participate in the Survivor Benefit Plan (SBP).

2.  The applicant states the United States Court of Federal Claims entered
an Entry of Judgment allowing him the option of declining SBP coverage.  He
declined coverage, but the Defense Finance and Accounting Service (DFAS)
still deducted SBP premiums from his retired pay.

3.  The applicant provides the United States Court of Appeals for the
Federal Circuit decision; the United States Court of Federal Claims
Stipulation for Entry of Judgment; a DD Form 214 (Certificate of Release or
Discharge from Active Duty) for the period ending 30 November 1998; a DD
Form 2656 (Data for Payment or Retired Personnel); and an email dated 9 May
2006.

CONSIDERATION OF EVIDENCE:

1.  After having had prior service, the applicant was transferred to the U.
S. Army Reserve in 1986.  He entered active duty on 15 November 1987.

2.  On 9 December 1996, a Department of the Army Active Duty Board (DAADB)
recommended the applicant be released from active duty for misconduct.  At
the time, the applicant raised the question of how much active Federal
service (AFS) he had and whether the DAADB should have considered him
without first obtaining Secretary of the Army approval.  It was then
determined he had over 18 years of AFS, and Secretary of the Army approval
for his separation was subsequently obtained.  Orders were issued on 13
April 1998 releasing him from active duty effective 16 April 1998.

3.  The applicant appealed to this Board for reinstatement on active duty
with subsequent retirement.  The Board denied his request.

4.  The applicant filed suit in the United States Court of Federal Claims,
which found in favor of the Government.  He appealed to the United States
Court of Appeals for the Federal Circuit, which reversed the lower Court’s
decision.  The majority of that Court found that the applicant was not
legally released from active service due to the Army’s failure to adhere to
its involuntary separation procedures (i.e., to obtain the Secretary of the
Army’s approval prior to initiating a DAADB on an officer with 18 or more
years of AFS).

5.  In October 2005, the United States Court of Federal Claims thereupon
vacated its earlier judgment.  The Stipulation for Entry of Judgment stated
in pertinent part (after noting the applicant would be retired from active
duty effective 1 December 1998) that “(The applicant) may, pursuant to
statute and regulation, enroll in the Survivor Benefit Program.  If he
chooses to do so, (the applicant’s) retired pay will be reduced by $156.00
per month.”

6.  On 2 February 2006, the applicant completed a DD Form 2656 to indicate
that he elected to decline to participate in the SBP.  His spouse signed
the DD Form 2656 indicating she concurred with his election; however, a
witness to her signature did not sign the form.

7.  On 10 August 2006, the applicant’s spouse provided a notarized
statement concurring with the applicant’s election to decline to
participate in the SBP.

8.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that
military members could elect to have their retired pay reduced to provide
for an annuity after death to surviving dependents.  An election must be
made prior to the effective date of retirement or else coverage
automatically defaults to spouse coverage, full base amount.

9.  Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986,
required a spouse’s written concurrence for a retiring member’s election
that provides less than the maximum spouse coverage.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was retired from active duty effective 1 December 1998 as
a result of a Court decision that was rendered in October 2005.  In
February 2006, the applicant, per guidance from the Court, indicated his
desire not to participate in the SBP.

2.  The laws governing the SBP require that a member make his or her SBP
decision prior to the effective date of retirement.  This is an
administrative impossibility in retroactive retirement cases, such as the
applicant’s.  Therefore, DFAS automatically enrolled him in the SBP.

3.  However, the applicant has provided his spouse’s concurrence with his
decision not to participate in the SBP.  His records should be corrected to
show he made the decision not to participate in the SBP prior to the
effective date of his retirement.

BOARD VOTE:

__pms___  __lmd___  __rdg___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by
showing that the applicant completed a DD Form 2656 on 1 November 1998 and
elected, with his spouse’s concurrence, not to participate in the SBP and
that his election was received and processed by the appropriate office
prior to his retirement date of 1 December 1998.




                                  __Paul M. Smith_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060010139                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060829                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |137.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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