RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 7 December 2004
DOCKET NUMBER: AR20040010610
I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.
| |Mr. Carl W. S. Chun | |Director |
| |Mrs. Nancy L. Amos | |Analyst |
The following members, a quorum, were present:
| |Mr. Mark D. Manning | |Chairperson |
| |Mr. John E. Denning | |Member |
| |Mr. James B. Gunlicks | |Member |
The Board considered the following evidence:
Exhibit A - Application for correction of military records.
Exhibit B - Military Personnel Records (including advisory opinion,
if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that his records be corrected to show that he
did not enroll in the Survivor Benefit Plan (SBP).
2. The applicant states, in effect, that he elected to participate in the
SBP upon his original retirement of 1 October 1999. He requested, with his
spouse's concurrence, termination of the SBP on 21 December 2001. However,
when the Board later corrected his retirement date to 1 June 2001, the
Defense Finance and Accounting Service (DFAS) restarted his SBP effective 1
June 2001. His spouse has again provided her concurrence with his request
for termination of the SBP.
3. The applicant provides a letter from DFAS dated 10 November 2004; a
DD Form 2656-2 (Survivor Benefit Plan (SBP) Termination Request) dated
21 December 2001; a DD Form 2656-2 dated 19 November 2004; and extracts
from Title 10, U. S. Code.
CONSIDERATION OF EVIDENCE:
1. The applicant was commissioned and entered active duty on 2 June 1976.
He retired on 1 October 1999 in the rank of lieutenant colonel. He elected
to participate in the SBP at that time.
2. On 21 December 2001, the applicant, with his spouse's concurrence,
requested termination of the SBP.
3. In 2003, the applicant applied to the U. S. Total Army Personnel
Command for promotion reconsideration to colonel. He was subsequently
selected for promotion to colonel with a date of rank and effective date of
1 June 1999. He then applied to the Board to correct his records to show
he was promoted to colonel 1 June 1999 and, in effect, retired on 1 June
2001. On 24 June 2004, the Board granted the relief requested.
4. Public Law 92-425, enacted 21 September 1972, established the SBP. The
SBP 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. An SBP election to not participate in the SBP (with the
spouse's concurrence), must be made before the first day for which he or
she is eligible for that pay.
5. 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. 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. When the applicant originally retired on 1 October 1999, he elected to
participate in the SBP. On 21 December 2001, he elected, with his spouse's
concurrence, to terminate the SBP.
2. On 24 June 2004, the applicant's retirement date was changed to 1 June
2001 by Board action. Since he failed to elect not to participate in the
SBP prior to his new retirement date, he was automatically reenrolled in
the SBP.
3. However, since the applicant obviously could not have made an SBP
election prior to his new retirement date of 1 June 2001, it would not be
equitable to require him to be enrolled in the SBP when both he and his
spouse elected, in December 2001, to terminate his participation.
4. The applicant's spouse enjoyed SBP protection for the period 1 June
2001 to on or about 1 January 2002; however, it would still be equitable to
correct his records to show that he elected not to participate in the SBP
prior to 1 June 2001 even if it means refunding him any SBP premiums paid
during the period 1 June 2001 to on or about 1 January 2002.
BOARD VOTE:
__mdm___ __jed___ __jbg__ 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
showing that he, with his spouse's concurrence, elected not to participate
in the
SBP prior to his new retirement date of 1 June 2001 and refunding to him
any SBP premiums paid after 1 June 2001.
____Mark D. Manning___
CHAIRPERSON
INDEX
|CASE ID |AR20040010610 |
|SUFFIX | |
|RECON | |
|DATE BOARDED |20041207 |
|TYPE OF DISCHARGE | |
|DATE OF DISCHARGE | |
|DISCHARGE AUTHORITY | |
|DISCHARGE REASON | |
|BOARD DECISION |GRANT |
|REVIEW AUTHORITY |Mr. Schneider |
|ISSUES 1. |137.04 |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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