BOARD DATE: 11 January 2011 DOCKET NUMBER: AR20100016301 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 correction of his records to show he elected not to participate in the Survivor Benefit Plan (SBP) and that he be reimbursed for any and all deductions from his retirement pay. 2. He states the following: * He and his spouse never wanted to be enrolled in the SBP * They were forced to enroll in the SBP due to the timeframe associated with his orders and they lived in two different states * He does not want SBP and he would like the money that was deducted from his retired pay returned 3. He provides the following documents in support of his application: * A notarized statement * DD Form 2656 (Data for Payment of Retired Personnel) * Retirement orders CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 15 March 2007. 2. Orders published on 19 March 2010 show he was released from assignment and active duty effective 26 March 2010 and placed on the Temporary Disability Retired List on the following day. 3. On 23 March 2010, he completed a DD Form 2656 and elected to participate in the SBP for spouse only coverage based on full gross pay. 4. He was medically retired on 26 March 2010. 5. In a 19 May 2010 notarized statement, he and his spouse attested to the following: * He was handed orders on Monday, 22 March 2010 stating his last day of active duty would be 26 March 2010 * He was given 5 days to check out of Fort Drum * His spouse had to move to their home of record before he was given orders * He and his spouse were forced to enroll in the SBP due to the time limit * He was told that his spouse had to sign paperwork to opt out, but there was not enough time * He was also told that he had to wait until he had received his first retirement check in order to take steps to opt out of the SBP 6. 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. 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. 7. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant completed a DD Form 2656 on 23 March 2010 and he elected to participate in the SBP for spouse coverage. He was medically retired on 26 March 2010. 2. His spouse provided a notarized statement, dated 19 May 2010, which is accepted as sufficient evidence to support her concurrence with his decision to cancel enrollment in the SBP. 3. It appears it was the applicant's and his spouse’s intent to decline participation in the SBP. Therefore, as a matter of equity, it would be appropriate to amend his DD Form 2656 to show he declined to participate in the SBP in a timely manner and to refund him any paid premiums. BOARD VOTE: ___x_____ ___x_____ _____x___ 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: a. amending his DD Form 2656 to show he and his spouse signed the form declining to participate in the SBP, which was properly notarized; b. showing the Defense Finance and Accounting Service timely received and processed the DD Form 2656 confirming his declination of the SBP; and c. as a result of this correction, refunding him all SBP premiums paid. _______ _ 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) AR20100016301 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100016301 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1