IN THE CASE OF:	  

		BOARD DATE:	        02 December 2008

		DOCKET NUMBER:  AR20080008951 


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 records be corrected to reflect that he elected not to participate in the Survivor Benefit Plan (SBP).

2.  The applicant states that when he originally sent in his DD Form 2656 (Data for Payment of Retired Personnel) in April 2005, he inadvertently sent in the wrong page indicating in block 26a that he elected full spouse coverage.  In September 2006, he discovered the error and was told how to correct the error and sent in a new packet with the corrected form indicating that he did not elect to participate in the SBP.

3.  The applicant provides, in support of his application, a DD Form 2656 dated 18 April 2005 indicating that he did not desire to participate in the SBP and copies of post cards he contends confirms receipt of his original and corrected DA Forms 2656 by Human Resources Command in St Louis (HRC-STL). 

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 19 March 1947 and enlisted in the Regular Army on 22 March 1966 for a period of 3 years.  He served until he was honorably released from active duty in the pay grade of E-5 on 21 March 1969 and was transferred to the United States Army Reserve (USAR) to complete his statutory service obligation.

2.  On 10 July 1970, he enlisted in the California Army National Guard and continued to serve through a series of continuous reenlistments.  
3.  On 19 August 1997, while serving in the rank of staff sergeant, the applicant received his Notification of Eligibility for Retired Pay at Age 60, also known as a 20-year letter.  

4.  The applicant was promoted to the pay grade of E-7 on 22 April 2002 and on 9 September 2002, he married his current spouse.

5.  On 18 April 2005, the applicant submitted a DA Form 2656 in which he elected full spouse coverage under the SBP.  The DA Form 2656 was also signed by his spouse.

6.  In September 2006, the applicant submitted the same DA Form 2656 with all the same dates and signatures and the option changed to elect not to participate in the SBP.

7.  On 19 March 2007, the applicant was honorably discharged from the Army National Guard and the USAR and was transferred to the Retired List effective 20 March 2007.  He had served 30 years of creditable service for Retired Pay purposes.

8.  Public Law 95-397, the Reserve Component SBP, 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 (costs for option C being the more expensive).  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 – it automatically rolls into SBP coverage.  If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60.

9.  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 continue to have the Reservist Portion cost deducted from their retired pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he opted not to participate in the SBP has been noted; however, prior to making that election, the applicant made the election to participate in the SBP under the spouse only, full coverage option, which was an irrevocable election once it had been received by the appropriate authorities.

2.  While the applicant subsequently changed his mind and submitted a DA Form 2656 reflecting that he opted not to participate in the SBP, he did so on the same form that he elected to participate in the SBP, which contained the same dates and his spouse's signature. 

3.  Therefore, because the applicant used the same form and has not submitted any re-verification of his spouse's concurrence or non-concurrence, it would not be appropriate for the Board to make the change he is requesting, that is to opt out of the SBP.

4.  Since he has failed to provide verification from his spouse that she agrees with the applicant's decision not to participate in the SBP and since he has the option of terminating his SBP participation beginning on the second anniversary of the date on which his retired pay started, provided his wife concurs, there appears to be no basis to grant his request at this time.

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.



      ________XXX______________
               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)                                         AR20080008951





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080008951



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1