RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2007-01425
INDEX CODE: 137.00
COUNSEL: None
HEARING DESIRED: NO
MANADATORY CASE COMPLETION DATE: 10 NOVEMBER 2008
_________________________________________________________________
APPLICANT REQUESTS THAT:
He be allowed to withdraw from the Survivor Benefit Plan (SBP) and
receive recoupment for premiums he already paid.
_________________________________________________________________
APPLICANT CONTENDS THAT:
He declined SBP prior to his retirement. His wife (who was separated
from him) nonconcurred in the SBP election, but later agreed to
decline spouse coverage.
In support of his appeal the applicant submitted a statement from his
wife, and documentation associated with his retirement processing.
Applicant's complete submission, with attachments, is attached at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant and his spouse were married on 18 September 1993. He
was briefed on the SBP on 3 August 2003 and elected to decline
coverage. On 29 August 2006, his spouse was counseled on the options
and effects of the SBP and did not concur in the applicant’s election
not to participate in the SBP. The Defense Finance and Accounting
Service–Cleveland (DFAS–CL) in accordance with law established
automatic spouse and child coverage based on full retired pay
following the applicant’s 1 November 2006 retirement.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPPRT recommends the requested relief be denied. DPPRT states
that Public Law (PL) 99-145 requires spouses of married servicemembers
to concur in writing, prior to the servicemember’s retirement, in SBP
elections that provide less than full spouse coverage. If the spouse
nonconurs with the election, coverage will be established on the
spouse’s behalf by operation of law. PL 105-85, effective 18 November
1997, provides for a one-year period beginning on the 25th month
following commencement of retired pay, during which the SBP
participants may choose to voluntarily discontinue their
participation. In order for servicemembers to disenroll, the
servicemember has to submit a DD Form 2656-2, SBP Termination Request
to the DFAS–CL with the spouses’ notarized consent. Withdrawals are
effective the month following DAFS–CL’s receipt of a valid request. A
request is considered valid if it postmarked no later than the
member’s third year anniversary of receiving retired pay. If the
retired servicemember fails to exercise the disenrollment option
during the one-year eligibility period the SBP election is considered
permanent and is irrevocable as long as the beneficiary remains
eligible.
DPPRT further states the applicant did not provide any evidence that
his spouse was improperly counseled on the SBP. No evidence was
provided to show that the options were not clearly presented and
explained to her and she could have elected to concur in the
applicant’s election. The SBP counselor’s role is to brief and assist
the servicemember and spouse in making an SBP election, it is
ultimately each person’s responsibility to comply with the statutory
requirement of the law. Based on her statement, she admits that she
did not want to decline the SBP until the applicant informed her he
had obtained life insurance. Her decision to change her mind came
after the applicant’s retirement date. Approval of this request would
provide the applicant an opportunity not afforded other retired
servicemembers and is not justified. On 1 November 2008, the
applicant may exercise his option under PL 105-85 to terminate SBP
participation.
AFPC/DPPRT evaluation is attached at Exhibit B.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A complete copy of the Air Force evaluation was forwarded to the
applicant on 18 May 2007, for review and response. As of this date,
no response has been received by this office.
_________________________________________________________________
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by existing
law or regulations.
2. The application was timely filed.
3. Insufficient relevant evidence has been presented to demonstrate
the existence of an error or an injustice. We took notice of the
applicant’s complete submission in judging the merits of the case;
however, we agree with the opinion and the recommendation of the Air
Force office of primary responsibility and adopt its rationale as the
basis for our conclusion that the applicant has not been the victim of
an error or injustice. We note that under the provisions of Public
Law 105-85, the applicant will have an opportunity to disenroll from
SBP commencing 1 November 2008, provided he obtains his spouse’s
written concurrence. Therefore, in the absence of evidence to the
contrary, we find no compelling basis to recommend granting the relief
sought in this application.
_________________________________________________________________
THE BOARD DETERMINES THAT:
The applicant be notified that the evidence presented did not
demonstrate the existence of material error or injustice; that the
application was denied without a personal appearance; and that the
application will only be reconsidered upon the submission of newly
discovered relevant evidence not considered with this application.
_________________________________________________________________
The following members of the Board considered AFBCMR Docket Number BC-
2007-01425 in Executive Session on 26 September 2007, under the
provisions of AFI 36-2603:
Ms. Kathleen F. Graham, Panel Chair
Ms. Janet I. Hassan, Member
Ms. Renee M. Collier, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 4 May 07, w/atchs.
Exhibit B. Letter, HQ AFPC/DPPRT, dated 14 May 07.
Exhibit C. Letter, SAF/MRBR, dated 18 May 07.
KATHLEEN F. GRAHAM
Panel Chair
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