IN THE CASE OF:
BOARD DATE: 23 September 2008
DOCKET NUMBER: AR20080006882
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, in effect, that his Survivor Benefit Plan (SBP) coverage be dropped.
2. The applicant states, in effect, he was in Iraq and went to change his beneficiary to his wife and was told he had to have her as his SBP beneficiary also, and he now knows this is not true.
3. The applicant provides no additional documentary evidence in support of his application.
CONSIDERATION OF EVIDENCE:
1. 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant's record shows that on 30 September 1996, while a member of the Army National Guard (ARNG) serving on active duty, he was honorably released from active duty for the purpose of retirement, under the provisions of the voluntary early retirement program. It also shows that on 1 October 1996, he was placed on the Retired List, in the rank of sergeant first class (SFC).
3. A Data for Payment of Retired Personnel (DD Form 2656) completed by the applicant on 18 September 1996, during his retirement processing, which is on file at the Defense Finance and Accounting Service (DFAS), shows in Section VII (SBP Elections) that the applicant elected Spouse and Children SBP coverage based on full gross pay without supplemental SBP. Section VIII (Survivor Benefit Spousal Concurrence) contains the signature of the applicant's spouse indicating her concurrence with the election of the applicant.
4. Public Law 105-85 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. This provision of the law further stipulates that none of the premiums paid will be refunded and no annuity will be payable upon death, and that the participant's covered spouse or former spouse must consent to the withdrawal. Termination is permanent and participation may not be resumed under any circumstance; future enrollment is barred. 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 contention that he was not properly briefed when he elected SBP coverage was carefully considered. However, there is insufficient evidence to support this claim.
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.
3. The evidence of record contains a properly constituted DD Form 2656, dated 18 September 1996, in which the elected full "Spouse and Child(ren)" SBP coverage in conjunction with his retirement. This document also contains the signature of the applicant's spouse in Section VII, in which she concurred with the SBP election made by the applicant.
4. The governing SBP law provides no provisions for terminating SBP coverage prior to the two year anniversary of the commencement of retired pay, or after a member has received retired pay for three years. Given the applicant has been receiving retired pay for more than 10 years, and absent any specifically defined conditions, such as disability or loss of an eligible beneficiary, the law provides no provisions for voluntary termination outside of the defined period. As a result, given there was no apparent error or injustice related to the applicant's SBP election, it would not be appropriate to grant the requested relief.
5. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___x____ ___x____ ____x___ 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.
________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) AR20080006882
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ABCMR Record of Proceedings (cont) AR20080006882
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