RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 May 2007
      DOCKET NUMBER:  AR20060014769


      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      |
|     |Ms. Deyon D. Battle               |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda Simmons                 |     |Chairperson          |
|     |Mr. Jerome Pionk                  |     |Member               |
|     |Mr. Eddie Smoot                   |     |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 correction of her records to show that she
elected not to participate in the Survivor Benefit Plan (SBP).  She also
requests a refund of the SBP premiums that she has paid from 31 January
2005 until December 2005.

2.  The applicant states that at one time during her career in the National
Guard, she listed a natural interest person (NIP) as her SBP beneficiary.
She states that when she was discharged, she was led to believe that since
she was no longer in the National Guard and no longer receiving National
Guard pay or paying into the insurance program, the SBP ended.  She states
that when she filled out her retirement papers a few months prior to her
60th birthday on 31 January 2005, she indicated that she did not want to
participate in the SBP because she did not have a beneficiary.  She states
that she was not advised that she needed to fill out additional forms to
remove the old NIP beneficiary from her records.  The applicant states that
when her retirement date arrived, she began receiving her retirement check
and the SBP premium was being deducted. She states that she immediately
contacted the Defense Finance and Accounting Service (DFAS) and that she
was told she would receive a refund.  She states that she called DFAS every
month and her pay never got fixed.  She states that in December 2005, she
was told that she needed to send a letter to remove the old NIP beneficiary
from her records and she immediately sent the letter to DFAS.  The
applicant states that she is still trying to get the SBP removed from her
retired pay and that DFAS has now agreed to refund her money as far back as
January 2006, the date that they received the letter requesting that the
NIP she listed as her beneficiary be removed.  She states that DFAS will
not refund her money from 31 January 2005 through December 2005, even
though her application clearly stated that she did not want to participate
in the SBP program.

3.  The applicant provides in support of her appeal, a copy of her
Application for Retired Pay Benefits (DD Form 108); a copy of her Army
National Guard Retirement Points History Statement, Application for
Retirement Pay (NGB Form 23C); a copy of orders dated 21 September 2004,
placing her on the retired list; a copy of a Data for Payment of Retired
Personnel (DD Form 2656); and a copy of her Report of Separation and Record
of Service (NGB Form 22).

CONSIDERATION OF EVIDENCE:

1.  After completing 9 years, 8 months and 25 days of service as a member
of the United States Army Reserve (USAR), the applicant enlisted in the
Utah Army National Guard (UTARNG) on 25 May 1989.
2.  The applicant's Survivor Benefit Plan Election Certificate (DD Form
1883) is not available for review by the Board.  However, the available
evidence indicates that at some point, while she was a member of the
UTARNG, she completed a DD Form 1883, electing to participate in the
Reserve Component SBP (RCSBP) and she named a natural person with insurable
interest as her beneficiary.  The DD Form 1883, which is required to be
completed by service members who elect to participate in the RCSBP, clearly
explains that the decision that the individual makes with respect to
participation in the SBP is a permanent irrevocable decision.  The DD Form
1883 also reads "please consider your decision and its effects very
carefully".

3.  Orders were published on 23 January 2001 discharging the applicant from
the UTARNG and assigning her to the USAR Control Group (Retired) with an
effective date of 1 February 2001.

4.  The available records show that the applicant submitted a DD Form 2656
on 4 August 2004, electing not to participate in the SBP.

5.  Orders were published on 21 September 2004, retiring the applicant from
the USAR and placing her on the retired list with an effective date of
31 January 2005 and in the retired rank and pay grade of staff sergeant (E-
6).

6.  In her application to this Board, the applicant states that the DFAS
has now agreed to refund the premiums that she paid from January 2006
onward; however, DFAS will not refund the premiums she paid from 31 January
2005, the date that she was placed on the retired list, until December
2005.

7.  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.  A
person who is not married and does not have a dependent child upon becoming
eligible to participate in the SBP may elect to provide an annuity to a
natural person with an insurable interest in the member.  Premiums for
insurable interest coverage are generally higher than for any other
category of coverage.

8.  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.  If death does not occur
before age 60, the RCSBP costs for options B and C are deducted from the
member’s retired pay.

9.  Public Law 103-337, enacted 5 October 1994, allowed SBP insurable
interest participants whose beneficiary is not their former spouse to
voluntarily terminate their participation in the SBP.  Any such termination
shall be made by a participant by the submission to the Secretary concerned
of a written request to discontinue participation in the SBP.  Such
participation shall be discontinued effective on the first day of the first
month following the month in which the request is received.  Once
participation is discontinued, benefits may not be paid in conjunction with
the earlier participation in the SBP and premiums paid may not be refunded.

10.  Title 10, U. S. Code, section 1452c(1) states the retired pay of a
person who has elected to provide an annuity to a person under section
1450(a)(4) (i.e., NIP coverage) shall be reduced as follows:

      Subsection 1452c(1)(B):  in the case of a person providing a reserve
component annuity, the reduction shall be by an amount prescribed under
regulations of the Secretary of Defense.

11.  Office of the Assistant Secretary of Defense (Force Management Policy)
memorandum, subject:  Sections 637 and 638 of the National Defense
Authorization Act for Fiscal Year 1995, Public Law 103-337, October 5,
1994; Changed Provisions of the Uniformed Services Survivor Benefit Plan
(SBP), dated 17 March 1995, provided that SBP premiums will no longer apply
as of the effective date of termination of NIP coverage except if the
participant terminating NIP coverage is a participant of a Reserve
Component annuity.  In such case, the Reserve Component premium add-on will
apply for life.

DISCUSSION AND CONCLUSIONS:

1.  The applicant initially elected to participate in the RCSBP and she
named a natural person with insurable interest as her beneficiary.  When
she completed her DD Form 1883, she was advised, in writing on the form,
that the decision she made with respect to participation in the SBP was a
permanent irrevocable decision.



2.  However, while spouse and/or child coverage elections under the RCSBP
and SBP are usually irrevocable, NIP coverage can be terminated at any time
by the retiree.

3.  There is no specific form to be used when requesting termination of SBP
NIP coverage.  Any clear written request should be acceptable.  Therefore,
the applicant’s 4 August 2004 DD Form 2656 is accepted as sufficient to
show she properly requested termination of her SBP NIP coverage.

3.  When the applicant completed her retirement application, she elected
not to participate in the SBP.  Although she did not make her intention
explicitly clear, she was apparently indicating her desire to terminate her
NIP coverage at that time, before her retirement.  However, DFAS must still
deduct RCSBP costs from a member's retired pay to cover the cost of past
RCSBP coverage, even if the same coverage is later canceled under the SBP.
When the cost is paid in full, the deductions will stop.  Therefore, the
RCSBP costs will not be refunded to the applicant, but the remaining SBP
premiums will be refunded.

4.  In view of the foregoing, it would now be in the interest of justice to
correct the applicant's records as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__LS____  __JP  ___  ___ES __  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by:






      a)  showing that she made a proper, written request to terminate her
SBP NIP coverage on 4 August 2004 and that it was received and processed by
the appropriate office in a timely manner to be effective 1 September 2004;
and


      b)  refunding all SBP premiums due her as a result of this correction.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
the return of deductions from her retirement pay for the RCSBP protection
that she received for coverage (gray area coverage) from initial selection
of NIP to 1 September 2004.




                                  _____Linda Simmons_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060014769                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070508                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  346  |137.0000/SURVIVOR BENEFIT PLAN          |
|2.  349                 |137.0300/TERMINATION OF PARTICIPATION   |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]