RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 April 2007
      DOCKET NUMBER:  AR20060012708


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |M. Scott W. Faught                |     |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 Survivor Benefit Plan (SBP)
election be terminated.

2.  The applicant states, in effect, that at the time of his retirement, he
and his wife were not told that they had 3 years to terminate the SBP.  He
claims that
2 to 3 years ago, they tried to terminate their SBP coverage and he just
found out they were not disenrolled and they had no right to terminate.  He
states that the SBP is not cost effective and he could put this money in a
retirement account or buy a million dollar insurance policy that would make
his wife better off.  He states his wife can retire and draw social
security in 10 years, at which time the SBP would be around $400.00 per
month.  He claims the SBP program was never fully explained to him during
out-processing.

3.  The applicant provides a statement from his wife in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 31 October 1999, the date his option to terminate SBP
participation expired.  The application submitted in this case is dated 7
August 2006.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's record shows that on 31 October 1996, he was released
from active duty (REFRAD) for the purpose of voluntary retirement, in the
rank of sergeant first class (SFC), after completing a total of 20 years, 7
months, and
24 days of active military service.

4.  On 11 March 1996, during his retirement processing, the applicant
completed a SBP Election (DA Form 2656), in which he elected "Spouse and
Children" SBP coverage based on his full gross pay with no supplemental
coverage.  The applicant authenticated this document with his signature.

5.  The applicant's wife provides a statement in support of this
application.  She states that upon the applicant's retirement, they were
told they had to sign up for the SBP program and that they could cancel at
anytime.  However, she had to sign a statement if she did not want it.  She
states that she decided the SBP is not worth the cost and tried to cancel
the program 2 or 3 years ago and was recently told she had no right to
cancel and that the only option was to apply to this Board.

6.  Public Law 105-85, effective 18 November 1997, established policy that
allows an SBP participant to terminate SBP coverage during the one-year
period between the second and third anniversary of the commencement of
retired pay.  Members who were retired less than 2 years on the effective
date could terminate participation during the one-year period commencing on
the second anniversary of their receipt of retired pay.  Absent the loss of
an eligible beneficiary, the law provides no provisions for terminating SBP
coverage prior to the two-year anniversary of commencement of retired pay,
or after three years of receiving retired pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he was not properly informed of SBP
options at the time of his retirement and that SBP participation is not
cost effective were carefully considered.  However, there is insufficient
evidence to support these claims.

2.  The requirements of the SBP are fully explained at regularly scheduled
pre-retirement orientations available before retirement, and information is
readily available at various web sites.  They are also covered in
Retirement Services Office briefings and publications that are widely
available throughout the Army.  Further, changes to the SBP program are
fully publicized in the Army Echoes Newsletters provided to retirees.  As a
result, it is reasonable to conclude that the applicant and his spouse were
provided or should have had access to the necessary information to make an
informed SBP election decision prior to retirement; and that they should
have been aware or had access to the information that would have made them
aware the option to terminate SBP participation provided in Public Law 105-
85, effective 18 November 1997.

3.  By law, members are provided the opportunity to terminate SBP
participation during the one-year period between the second and third
anniversary of the commencement of retired pay.  There are no provisions of
law that allow for terminating SBP coverage prior to the two-year
anniversary of commencement of retired pay, or after three years of
receiving retired pay.
4.  In this case, the evidence of record confirms the applicant elected
full "Spouse and Children" SBP coverage in conjunction with his retirement.
 There is no indication that he attempted to terminate his SBP
participation in the one year period between his second and third
anniversary (31 October 1998 and
31 October 1999) of receipt of retired pay, which is the only opportunity
that is provided by the governing law.

5.  The fact that the applicant and his spouse have now decided that there
are better options than SBP does not provide a basis for granting the
requested relief.  Absent any evidence showing the applicant was not
provided or not afforded access to briefings regarding his SBP
participation prior to his retirement, or the information pertaining to the
SBP participating termination option provided in Public Law 105-85
subsequent to his retirement, there is an insufficient evidentiary basis to
support terminating his SBP participation at this time.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 October 1999, the date his option
to terminate SBP participation expired.  Therefore, the time for him to
file a request for correction of any error or injustice expired on 30
October 2002.  He failed to file within the 3-year statute of limitations
and has not provided a compelling explanation or evidence to show that it
would be in the interest of justice to excuse failure to timely file in
this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___LDS _  __JCR __  __SWF __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  ____Linda D. Simmons_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060012708                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/04/05                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1996/10/31                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |137.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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