2. The applicant requests correction of his military records by canceling his SBP (Survivor Benefit Plan) participation.
3. The applicants military records show that he was born on 15 October 1934. He was a member of the New York State Army National Guard. He was married with children. The applicant retired on 5 October 1994 and for unknown reasons, he did not make application for retired pay, which included making an SBP election (DA Form 4240) until 15 February 1995 after the date of retirement. By law, this failure resulted in the SBP election default of automatic full spouse coverage. The applicants record also indicates that he did not make an application to change the election until almost 1 year following the start of his retired pay and SBP cost deductions.
4. On 1 January 1996, the applicant submitted an appeal to this Board requesting cancellation of his participation in the SBP.
5. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. However, surviving children are only entitled to SBP payments until reaching age 22 in certain cases. Changes in SBP options are not authorized except in specific instances, or authorized by law.
6. Public Law 95-397, effective 1 October 1978, extended eligibility for coverage under the SBP to members and former members of the Reserve Components (RC) who had 20 or more years of qualifying service, but had not reached age 60, the age at which they would be eligible for retired pay.
7. In the processing of this case, a staff advisory opinion was obtained from the Headquarters Army Retirement Services, in ODCSPER, which recommended approval of the applicants request for cancellation of his SBP participation.
CONCLUSIONS:
1. The evidence of record shows that for unknown reason the applicant did not make application for retired pay, which included making an SBP election until after 15 February 1995, after the date of his retirement.
2. There is no evidence that the applicant participated in the Reserve Component SBP. There is no evidence that the applicant received SBP counseling procedures at the National Guard unit level, and since the retired pay amount likely does not represent a major portion of the familys overall income, allowing the applicant to decline participation would be reasonable.
3. Therefore, in view of the foregoing, findings, conclusions and the advisory opinion, it would be appropriate to correct the records as recommended below.
RECOMMENDATION:
That all of the Department of the Army records related to this case be corrected by canceling, with the concurrence of the applicants spouse, his participation in the SBP retroactive to date of his retirement (5 October 1994).
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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