RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 27 November 2007
DOCKET NUMBER: AR20070006588
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.
Ms. Catherine C. Mitrano
Director
Mr. Michael L. Engle
Analyst
The following members, a quorum, were present:
Mr. William D. Powers
Chairperson
Mr. Gerald J. Purcell
Member
Mr. John G. Heck
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 correction of her military records to show that she elected not to participate in the Survivor Benefit Plan; and, that her retired pay be based on the rank of captain, pay grade O-3.
2. The applicant states that she elected not to participate in the SBP but a premium is being collected anyway. She also contends that her retired pay should be based on her former grade of O-3, and not her enlisted grade of E-7.
3. The applicant provides copies of her retirement orders; Certificates of Release or Discharge (DD Forms 214) for 1 July 1990 and 31 March 2007; Request for Retirement as an officer; the second page of DD Form 2656; and a notarized statement.
CONSIDERATION OF EVIDENCE:
1. On 13 January 1975, the applicant enlisted in the Regular Army for 2 years. She completed her initial training and was awarded military occupational specialty 63B1O (Light Vehicle Mechanic). She was honorably discharged on
13 September 1976. She had attained the rank of specialist four, pay grade E-4 and had completed 1 year, 8 months, and 1 day of creditable active service.
2. On 27 July 1979, the applicant was appointed as a second lieutenant, United States Army Reserve (USAR). She served on active duty from 18 August 1979 to 1 July 1990, when she was released from active duty and transferred to the USAR Control Group (Reinforcement). She attained the rank of captain, pay grade O-3 and had completed 10 years, 10 months, and 14 days of active duty service as a commissioned officer.
3. Records for the period from July 1990 to November 2004 are not available for review. On 2 December 2004, the applicant reenlisted in the USAR in the rank of sergeant first class, pay grade E-7. She served on active duty until her retirement for length of service on 31 March 2007. She had completed a total of 20 years, 6 months, and 17 days of creditable active duty.
4. On 9 January 2007, the applicant indicated in Section IX (Survivor Benefit Plan Election), of her DD Form 2656, that she had eligible dependents under the plan but elected not to participate. The form was witnessed by the Army SBP counselor.
5. Defense Finance and Accounting Service records show that the applicant is retired and paid at the rank of captain, pay grade O-3. DFAS records further show that she is enrolled in the SBP with spouse coverage based on her full gross pay.
6. On 8 January 2007, the applicant made a notarized statement swearing under oath that she did not know the whereabouts of her husband and had not seen him in over 6 years.
7. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. The election must be made before the effective date of retirement or else coverage defaults to automatic spouse coverage.
8. Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouses written concurrence for a retiring members election that provides less than the maximum spouse coverage. DFAS automatically enrolls the retired service member at the full gross pay rate when the spouse's concurrence is not received.
9. Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation. Retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from SBP. The spouses concurrence is required. No premiums will be refunded to those who opt to disenroll. The effective date of termination is the first day of the first calendar month following the month in which the election is received by the Secretary concerned.
DISCUSSION AND CONCLUSIONS:
1. The evidence clearly shows that the applicant did not intend to participate in the SBP. She stated under oath that she did not know the whereabouts of her spouse and had not seen him for more than 6 years. However, she did not provide any other evidence, such as a missing persons report, separation agreement, or divorce decree, to support her sworn statement. Therefore, DFAS enrolled her in the SBP at the full gross pay rate for spouse coverage,
2. The applicant has not provided any convincing evidence to substantiate her contention that she does not know the location of her husband and has not seen him for more than 6 years.
3. DFAS records indicate that the applicant is retired in the pay grade of O-3 and receiving pay as such.
4. In view of the above, the applicant's request should be denied.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__ WDP__ __JGH __ __GJP _ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
__ _ William D. Powers ______
CHAIRPERSON
INDEX
CASE ID
AR20070006588
SUFFIX
RECON
DATE BOARDED
20071127
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
137
2.
3.
4.
5.
6.
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