RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2007
	DOCKET NUMBER:  AR20060011380 


	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. Wanda L. Waller

Analyst


The following members, a quorum, were present:


Mr. Kenneth Wright

Chairperson

Mr. Chester Damian

Member

Ms. Ernestine Fields

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, in effect, that his military records be corrected to show that he elected not to participate in the Survivor Benefit Plan (SBP).

2.  The applicant states, in effect, that his DD Form 2656 (Data for Payment of Retired Personnel), dated 29 September 2005, was improperly processed.  He contends that the form was not properly filled out, that he was not notified of this, and that his and his wife’s intentions were altered as a result.

3.  In a letter, dated 3 August 2006, the applicant states, in effect, that on 
15 June 2000 he submitted a DD Form 2656 and elected to participate in the SBP.  In September 2005, he submitted his retirement packet and completed another DD Form 2656 and checked what he thought was the correct box to decline participation in the SBP.  It was not until he received his first retirement check that he noticed the mistake.  He claims that the Defense Finance and Accounting Service (DFAS) advised him of the mistake on the form and told him that whoever processed his retirement went back to the 2000 DD Form 2656 to complete his retirement status.  He states that on 2 August 2006, he went to Fort Knox and completed a new DD Form 2656 correctly; that he already committed funds from his retirement for insurance to provide for his wife if he should pass; and that to continue to deduct money from his retirement for the SBP would cause a financial hardship for them.

4.  The applicant provides a DD Form 2656, dated 2 August 2006; a DD Form 2656, dated 29 September 2005; a letter, dated 24 July 2006, from DFAS – Cleveland Center; and a sworn statement, dated 4 August 2006, from his wife.    

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 8 July 1946.  He married on 16 October 1971.  Having prior service in the U.S. Marine Corps, he enlisted in the U.S. Army Reserve on 1 March 1985.    

2.  The applicant’s notification of eligibility for retired pay at age 60 (his 20-year letter) is not available.  His DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 13 June 2000, shows he enrolled in the Reserve Component SBP (RCSBP) for spouse coverage, full base amount, Option C (immediate coverage).  Section II of this form stated, “IMPORTANT:  The decision you make with respect to participation in this Survivor Benefit Plan is a permanent irrevocable decision.  Please consider your decision and its effect very carefully.”   

3.  Section IX (Survivor Benefit Plan Election) on the DD Form 2656, dated 
29 September 2005, that the applicant provided with his application shows he attempted to elect not to participate in the [standard] SBP and his wife concurred with this attempted election.  The DD Form 2656 is a four-page document, the last two pages being instructions.  The instructions for completion of Section IX state that members who elected RCSBP do not complete items 26-31 (Sections IX, X, and XI).  

4.  The applicant was placed on the retired list effective 8 July 2006.

5.  The applicant also provided a DD Form 2656, dated 2 August 2006, which shows he elected not to participate in the [standard] SBP and his wife concurred with this election.  In addition, he provided a sworn statement, dated 4 August 2006, from his wife.  

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.  Once a member elects either options B or C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP, and RCSBP coverage automatically rolls into SBP coverage.

8.  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 SBP.  The spouse's concurrence is required.  No premiums will be refunded to those who opt to disenroll.  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.  The applicant’s DD Form 1883 shows that he enrolled in the RCSBP for spouse coverage on 13 June 2000.  That was an irrevocable election that rolled over into the standard SBP upon reaching age 60 as, in effect, the instruction sheet to the DD Form 2656 informed him.  Therefore, there is no basis for granting the applicant’s request.   

2.  The law provides that retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started (8 July 2006 for this applicant), to withdraw from the SBP.  However, SBP premiums already paid will not be refunded to him and he will be barred from ever re-enrolling in the SBP.  Moreover, any costs still owing to pay for RCSBP spouse coverage (from 13 June 2000 until 8 July 2006) will continue to be deducted from his retired pay until the amount is paid in full.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

KW_____  __CD___  _EF_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



____Kenneth Wright____
          CHAIRPERSON




INDEX

CASE ID
AR20060011380
SUFFIX

RECON

DATE BOARDED
20070327
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
137.0000
2.

3.

4.

5.

6.