BOARD DATE:	  6 October 2009

		DOCKET NUMBER:  AR20090010153 


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 participation in the Survivor Benefit Plan (SBP) be cancelled.

2.  The applicant states that since retiring from the Army he has been unable to find employment and, as result, he is facing financial hardship.  He further states that with the current state of the economy he is having to trim all items that are not a basic need for his family and that any additional funds during this time is helpful.

3.  The applicant provides a Retiree Account Statement as of 2 January 2009 and a self-authored statement in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 13 September 1988 and continued to serve through a series of continuous reenlistments.

2.  On 26 June 2008, the applicant completed a DD Form 2656 (Data for Payment of Retired Personnel).  On this form, he elected to participate in the SBP for spouse and child(ren) coverage, based on full gross pay.  

3.  The applicant signed the DD Form 2656 under Section XI (Certification) which specifically states, in part, "Also, I have been counseled that I can terminate SBP participation, with my spouse's written concurrence, within one year after the second anniversary of commencement of retired pay.  However, if I exercise to terminate the SBP, future participation is barred."

4.  The applicant retired on 1 October 2008.

5.  The applicant provided a Retiree Account Statement which shows the monthly deduction of his SBP premium is $100.31.

6.  The applicant also provided a self-authored statement which essentially states that since his retirement, he has been unable to find employment due to the unstable economy and the closing of major companies in his area.  As a result, he has been faced with the inability to adequately provide financially for his family.

7.  Public Law 92-425, the SBP, enacted on 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving family members.  The member may elect not to participate (with their spouse’s concurrence, if required), but the election must be made before the first day for which the member is eligible to receive retired pay.

8.  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 the 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his participation in the SBP should be cancelled because of his inability to find employment and the present state of the economy.

2.  The applicant elected to participate in the SBP, spouse and child(ren), based on full gross pay.  It appears he was counseled and authenticated this form in the presence of a retirement services officer.  The SBP statute provides that an election, once made, is irrevocable, except as provided for by law.  Therefore, there is no basis to grant the applicant's requested relief.

3.  The applicant is advised that Public Law 105-85 provides him an opportunity to withdraw from the SBP, beginning on the second anniversary of the date on which his retired pay started, which in his case is October 2010.  He is further 

advised that no premiums will be refunded to those who opt to disenroll and that if he exercises this option to terminate the SBP, future participation is barred.

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)                                         AR20090010153



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ABCMR Record of Proceedings (cont)                                         AR20090010153



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