IN THE CASE OF:
BOARD DATE: 4 December 2008
DOCKET NUMBER: AR20080009538
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 he be allowed to disenroll from the Survivor Benefit Plan (SBP).
2. The applicant states that due to a change in their financial situation he and his spouse no longer desire to be in the SBP program. He states that his spouse concurs with the decision to be removed from the SBP program.
3. The applicant provides a copy of a Sworn Statement (DA Form 2883) dated 13 May 2008, without a Notarized Seal; a memorandum dated 6 October
2008; an Act of Civil Matrimony statement; and a DA Form 2656 (Data for Payment of Retired Personnel) dated 21 June 2007.
CONSIDERATION OF EVIDENCE:
1. He was appointed as a second lieutenant on 2 October 1987. He was then promoted to first lieutenant on 5 October 1989.
2. The applicant served continuously on active duty until he achieved the rank of lieutenant colonel on 2 October 2004. He was honorably retired from active duty on 31 October 2007 and transferred to the retired list on 1 November 2007. He completed 20 years and 29 days of active service.
3. The applicant's date of birth is 21 October 1965 and his date of marriage is
22 September 1989.
4. The DD Form 2656 that the applicant submitted shows that he elected SBP coverage for his spouse only and the coverage was based on his full gross pay.
5. The memorandum dated 6 October 2008 that the applicant submitted states that the applicant had contacted a liaison representative from the Defense Finance and Accounting Service (DFAS), Retired Annuity Payment Center in regards to his SBP premium. The Liaison representative informed the applicant that he has to wait until the 2-year mark starting on the date of his participation in SBP, which would be 1 November 2009.
6. 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. An election, once made, is irrevocable except in specific instances or authorized by law.
7. 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 spouses concurrence is required. No premiums will be refunded to those who opt to disenroll.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that he and his spouse would like to discontinue SBP due to a change in their financial situation.
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, his spouses concurrence is required. As such, he is not entitled to correction of his records to opt out of SBP coverage at this time.
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 period 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) AR20080009538
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ABCMR Record of Proceedings (cont) AR20080009538
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