IN THE CASE OF:	  

		BOARD DATE:	  31 March 2011

		DOCKET NUMBER:  AR20100023543


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 disenrollment from the Survivor Benefit Plan (SBP).

2.  The applicant states he did not know that by not taking any action at all regarding SBP, he would be automatically enrolled.  He adds both he and his spouse do not want SBP.

3.  The applicant provides:

* a declination letter signed by him and his spouse
* a copy of a Defense Finance and Accounting Service-Cleveland 
(DFAS-CL) Form 7220/148 (Retiree Account Statement)

CONSIDERATION OF EVIDENCE:

1.  The applicant is a retired sergeant first class/E-7.  He retired on 30 June 2010.

2.  The applicant's interactive Personnel Electronic Records Management System (iPERMS) records contain a DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members).  This document shows the applicant did not participate in financial management counseling, to include counseling on the Thrift Savings Plan, retirement, and SBP.

3.  The applicant's iPERMS records do not contain a DD Form 2656 (Data for Payment of Retired Personnel).  Section IX (SBP Election) is used for electing SBP options.

4.  The applicant's DFAS-CL Form 7220/148 shows he is paying for SBP coverage for spouse only based upon his full gross retired pay.

5.  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.  A retiree is automatically enrolled in SBP upon retirement at the maximum level of coverage for his or her respective surviving spouse and surviving dependent children unless the retiree elects not to participate, to participate at a lesser level of coverage, elects other than spouse coverage, or is ordered by a court to provide such benefits to a former spouse.

6.  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.

7.  A member may terminate participation between the 25th and 36th month after receipt of retired pay.  Spousal concurrence is required and no premiums will be refunded for past coverage.  Termination between the 25th and 36th month after receipt of retired pay means future enrollment is barred.  A DD Form 2656-2 (SBP Termination Request) must be completed and sent to DFAS.

DISCUSSION AND CONCLUSIONS:

1.  It appears the applicant was automatically enrolled in the SBP for spouse coverage since he did not make an SBP election prior to his retirement in 2010.  Soldiers who do not make an SBP election are automatically enrolled in SBP upon retirement at the maximum level of coverage.

2.  The applicant's contentions were carefully considered; however, he clearly had the opportunity to receive information concerning SBP.  Had he availed himself of that information, he could have declined SBP with spousal concurrence.

3.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.

4.  The applicant has the option of terminating his participation in SBP between the 25th and 36th months of his retirement.

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 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)                                         AR20100023543



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ABCMR Record of Proceedings (cont)                                         AR20100023543



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