RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 October 2006
      DOCKET NUMBER:  AR20060004471


      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             |
|     |Ms. Beverly A. Young              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. Gerald Purcell                |     |Member               |
|     |Ms. Karmin Jenkins                |     |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 her records be corrected to show that she
declined participation in the Survivor Benefit Plan (SBP) and that she
receive a refund for all SBP premiums taken from her retired pay.

2.  The applicant states she declined participation in the SBP in the
pre-retirement packet and she declined participation in the SBP under item
26g on her DD Form 2656 (Data for Payment of Retired Personnel) with her
husband’s approval.  She elected not to participate in the SBP in the
pre-retirement packet.  She states that four months prior to her
60th birthday, her husband was diagnosed with malignant melanoma.  She
states that her attention was totally directed to his health care in the
following months.  Shortly after her 60th birthday, she requested the
retirement pay packet.  She and her husband again elected not to
participate in the SBP.  She also states that SBP premiums were deducted
from her retired pay in September 2005 and she called Customer Service for
Pay.  She was told it was an error and it should be corrected within  60
days.  Meanwhile, SBP premiums continued to be deducted from her retired
pay.  She continued to contact the Defense Finance and Accounting Service
(DFAS) and received no response.  She called the Retirement Services Office
at Fort McCoy and was informed that SBP premiums were being deducted from
her retired pay because her retirement packet for pay arrived a few weeks
after her 60th birthday.

3.  The applicant provides a personal letter, dated 17 March 2006; a copy
of her spouse’s pathology report, dated 4 February 2005; her DD Form 2656,
dated 18 July 2005; her retirement orders, dated 17 August 2005; and her
Retiree Account Statement, with an effective date of 18 August 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 25 June 1945.  After having had prior
enlisted service in the Air National Guard, she was appointed as a Reserve
commissioned officer on 16 December 1982.  She was married on 1 October
1983.

2.  The applicant’s notification of eligibility to receive retired pay at
age 60
(20-Year Letter) is dated 2 February 2001.  She apparently elected not to
participate in the Reserve Component SBP (RCSBP) at that time.

3.  The applicant reached age 60 on 25 June 2005.

4.  The applicant completed a DD Form 2656 and signed this form on 18 July
2005.  She placed an “X” beside item 26g and elected not to participate in
the SBP.  Her spouse signed the DD Form 2656 under Section XI (SBP Spouse
Concurrence) to indicate he concurred with her decision to decline
participation in the SBP.

5.  The applicant provided a copy of her Retiree Account Statement, with an
effective date of 18 August 2005, which shows SBP spouse only costs had
been deducted from her retired pay.

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.

7.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way
for those who had qualified for reserve retirement but were not yet age 60
to provide an annuity for their survivors should they die before reaching
age 60. Three options are available:  (A) elect to decline enrollment and
choose at age 60 whether to start SBP participation; (B) elect that a
beneficiary receive an annuity if they die before age 60 but delay payment
of it until the date of the member’s 60th birthday; (C) elect that a
beneficiary receive an annuity immediately upon their death if before age
60.

8.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant’s 20-Year Letter was dated
2 February 2001.  It appears she did not elect to participate in the RCSBP
at that time.

2.  The applicant completed and signed a DD Form 2656 on 18 July 2005.
However, even though her spouse concurred, the form was submitted a few
weeks after her 60th birthday.  As a result, she was automatically enrolled
in the SBP.

3.  Although the applicant submitted her DD Form 2656 after her 60th
birthday, it appears that it was her and her husband’s intent to decline
participation in the SBP and it was only her preoccupation with her
husband’s serious health problems that prevented her from completing the
form in a timely manner.  Therefore, as a matter of equity, it would be
appropriate to amend the applicant’s DD Form 2656 to show she declined to
participate in the SBP in a timely manner and to refund her any paid
premiums.

BOARD VOTE:

JI______  GP______  KJ______  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 the DD
Form 2656 of the individual concerned be amended to show she and her spouse
signed the form in a timely manner declining to participate in the SBP and
it was received and accepted for processing by the appropriate office, thus
resulting in her never being enrolled in the SBP and being due a refund of
all SBP premiums paid.




                                  John Infante__________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004471                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061012                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |137.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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