IN THE CASE OF: BOARD DATE: 1 December 2009 DOCKET NUMBER: AR20090007088 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that his military records be corrected by canceling his Survivor Benefit Plan (SBP) election for spouse coverage. 2. The applicant states, in effect, that upon his retirement from active duty in 2002 he was automatically enrolled in the SBP and that he was unaware of the requirements to opt out of the SBP program between the 25th and 36th month after retirement. He contends that he no longer wishes to be enrolled in the SBP because of serious financial difficulties and that he has personal private commercial insurance for his dependents and beneficiaries. He also states that the only way out of the SBP program is to wait until he is 70 years of age and paid into the program for 360 months. 3. The applicant provides a letter, dated 2 April 2009, from the Defense Finance and Accounting Service (DFAS) and a DD Form 2656-2 (SBP Termination Request) in support of his application. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant retired effective 1 January 2002 in the rank of first sergeant/pay grade E-8. 3. The available records do not contain a DD Form 2656 (Data for Payment of Retired Personnel). 4. DFAS records show the applicant's current SBP election is automatic, the default election when a valid election is not received. 5. On 2 March 2009, the applicant submitted a DD Form 2656-2 to DFAS. 6. On 2 April 2009, DFAS responded to the applicant's request to terminate the SBP. He was informed that he only had a one year window to withdraw from the SBP, starting with the 25th month through the 36th month after his eligibility to receive retired pay, and that since he had been retired for more than 36 months he was not eligible to withdraw. 7. 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. 8. 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. 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 spouse's 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. Extensive publicity was given in Army Echoes, the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army. DISCUSSION AND CONCLUSIONS: 1. It appears that consistent with applicable law, the applicant was automatically enrolled in the SBP for spouse coverage upon his retirement because he did not make an SBP election. For the next seven years the applicant paid SBP premiums without complaint. 2. The law provides that retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started (1 January 2004 for this applicant), to withdraw from the SBP. 3. The applicant's contention that when he retired in 2002 he was unaware of the requirements to opt out of the SBP program between the 25th and 36th month after retirement was noted. However, Army Echoes would have informed him of his option to disenroll from the SBP during the period 1 January 2004 through 1 January 2005. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x______ ___x____ ____x____ 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. _______ _ x_______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20090007088 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090007088 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1