IN THE CASE OF:	  

	BOARD DATE:	31 July 2008

	DOCKET NUMBER:  AR20080005570 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his Survivor Benefit Plan (SBP) premium not be taken out of his military retirement pay.

2.  The applicant states, in effect, that when he completed the DD Form  
2656 (Data for Payment of Retired Personnel), he inadvertently left the entry blank for his SBP spouse coverage.  He states that he meant to decline the SBP.

3.  The applicant provides a copy of his DD Form 1883 (SBP Election Certificate), dated 10 January 1989.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army National Guard as an enlisted Soldier on 
4 December 1967.  He completed the necessary training and was awarded the military occupational specialty (MOS) 91A (Medical Corpsman).  He was honorably released from active duty and reverted to the New York State Army National Guard (NYARNG) on 29 April 1968.  He completed 4 months and  
26 days of active duty.  He served continuously with NYARNG until he was promoted to the rank of master sergeant, on 25 April 1980.

2.  He was honorably separated as an enlisted Soldier from the NYARNG on  
26 May 1982 after completing 14 years, 8 months, and 8 days of Net Service This Period.  He was then appointed as a Reserve Warrant Officer in the rank of Chief Warrant Officer Two (CW2) of the Army on 27 May 1982.  He served continuously in the Army National Guard.  On 7 October 1993, he was promoted to the rank of CW4.

3.  He was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Retired) on 31 January 2008.  His separation document (NGB Form 22) shows that he had completed 25 years, 8 months, and 5 days of Net Service This Period.  The applicant's date of birth is 11 December 1945.

4.  According to the DD Form 1883 that the applicant submitted, he declined to make an SBP election by deferring his option using option A until he reached age 60.  His 20-year letter was dated 1 December 1988, which meant he responded within 90 days of notification of eligibility for retired pay at age 60.  The applicant reached age 60 on 11 December 2005.

5.  Since he was still serving, he did not make his election until September 2007, prior to his 31 January 2008 retirement.

6.  In reviewing the applicant’s record with the Defense Finance and Accounting Service (DFAS), the Army Liaison informed the Board's staff that the applicant failed to make an SBP election when he retired.  Therefore, the SBP coverage defaulted to maximum coverage for his spouse.  This caused a full premium collection from his retired pay.  The Army Liaison furnished the Board's staff a copy of the DD Form 2656.

7.  Public Law 95-397, the Reserve Component SBP (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.  At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else have waited until he/she applied for retired pay and elected to participate in the standard SBP.



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.  Reservists who elected an option under the RCSBP will continue to have the Reservist portion cost deducted from their retired pay.

9.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).

DISCUSSION AND CONCLUSIONS:

1.  Considering all the evidence, contentions, and information presented by the applicant through his statement, together with the evidence of record and applicable law and regulations, it is reasonable to conclude that the applicant had failed to make an election at the appropriate time (at age 60 or prior to  
31 January 2008); therefore, his SBP defaulted to automatic spouse coverage.

2.  Although the applicant claims that he would now like to disenroll from SBP, by law he has a one-year period, beginning on the second anniversary of the date on which his retired pay started to withdraw from SBP; however, spouse’s concurrence is required.  As such, he is not entitled to correction of his records (the DD Form 2656) to show that he declined SBP coverage.

3.  The applicant is advised to contact the Military Retirement Pay Branch of the Defense Finance and Accounting Service to terminate his SBP spouse coverage during the one-year beginning on the second anniversary of the date on which his retired pay started.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  ____X___  ___X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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. The Board wants the applicant and all others concerned to know that this determination in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      __________X_____________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080005570



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ABCMR Record of Proceedings (cont)                                         AR20080005570



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