IN THE CASE OF:	  

		BOARD DATE:	  20 NOVEMBER 2008

		DOCKET NUMBER:  AR20080009790 


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 cancel his enrollment in the Survivor Benefit Program (SBP).

2.  The applicant states, in effect, when he reported to Fort Sam Houston, Texas, on 15 April 2008 to complete his retirement paperwork, it was not explained about how the SBP actually worked.  He was not informed before he reported that his spouse had to accompany him if he elected not to select the SBP.  The representative stated that since his spouse was not there, he had to select SBP.  He was also not informed that he could not change this until after two years.  He is now requesting that he be allowed to cancel his SBP election since he was not properly informed.

3.  The applicant adds, in effect, that he believes he should be allowed to cancel the SBP election since he was not informed about all the issues that surround the SBP selection.  His spouse did not want the coverage since his spouse did not accompany him.  The Fort Sam Houston Retirement Section informed him that he had to make an SBP selection.  Again, he states that he was not informed about not being able to change any SBP selection until after the 25th of the month. He is requesting to be allowed to cancel this program since he was not properly and truthfully informed.

4.  In support of his request, the applicant provides a copy of Orders 102-1055, published by the Texas Military Forces, Army National Guard, Adjutant General's Department, Austin, Texas, dated 11 April 2008; and a copy of his DD Form 214, (Certificate of Release or Discharge from Active Duty), dated 30 April 2008.  In a follow-up transmittal, the applicant submitted a notarized statement from his spouse in which she gives her approval and requests his disenrollment from the SBP.  The applicant's spouse also requested a refund of all monies which have been deducted and applied towards his SBP coverage.

CONSIDERATION OF EVIDENCE:

1.  The evidence shows the applicant enlisted in the Texas Army National Guard on 21 July 1980 in the rank and pay grade Private (PV1)/E-1, at the age of 20 years, 11 months and 29 days.  The applicant's date of birth is 23 July 1959.

2.  The applicant and his spouse were married on 23 December 1980.

3.  The evidence shows that the applicant continued his career through several reenlistments and served in a variety of military occupational specialties.  The applicant was promoted to the rank and pay grade of Sergeant Major (SGM)/E-9, on 1 February 2006.

4.  On 9 August 2000, the applicant was notified in a memorandum, Subject:  Notification of Eligibility for Retired Pay at Age 60, prepared by the Adjutant General's Department, Austin, Texas, that he was eligible for retired pay, upon application, at age 60.  The applicant will reach the age of 60 on 23 July 2019.

5.  On 15 April 2008, the applicant completed a DD Form 2656 (Data for Payment of Retired Personnel).  In this form, the applicant indicated he was 
married and had a dependent child.  In Section IX (Survivor Benefit Plan (SBP) 
Election) of the form, he elected coverage for his spouse and his child based on full gross pay.  Because the applicant elected full coverage for his spouse and his child, his spouse was not required to concur with his coverage election.

6.  The applicant signed the DD Form 2656 (Back), in Section XII (Certification).  In Item 32, of this section appears the following statement, "I have been counseled that I can terminate SBP participation, with my spouse's written concurrence, within one year after the second anniversary of commencement of retired pay.  However, if I exercise my option to terminate the SBP, future participation is barred."  The applicant will complete two years on the retired list on 1 May 2010.  He will be eligible to cancel his participation in the SBP after this date and until 30 April 2011.

7.  On 30 April 2008, the applicant was separated for the purposes of retirement, in accordance with Army Regulation 635-200, Chapter 12, in the rank and pay grade of SGM/E-9, for sufficient service for retirement.  On the date of his 
separation, the applicant had completed 25 days of service this period; a total of 21 years, 5 months, and 2 days of prior active service; and with 6 years, 3 months and 13 days of prior inactive service.

8.  On 3 September 2008, the applicant’s spouse provided a notarized statement stating she accepted [agreed with] the applicant's request to disenroll from participation in the SBP.  The applicant's spouse added that she would like to request a refund of all monies [premiums] deducted from the applicant's pay for participation in the SBP to date. 

9.  Historically, on 13 April 2004, the applicant completed a DD Form 2656-5, Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate.  In this form, the applicant indicated he was married and had one dependent child.  In Section IV (Coverage) of the form he elected Option C (immediate annuity).  By selecting this option, he elected to provide an immediate annuity beginning the day after his date of death, whether before or after age 60 for his spouse and child based on his full retired pay.  In Section VI (Supplemental SBP (SSBP) Coverage), of the form, the applicant declined supplemental SBP coverage for his spouse and for his child.  This form became null and void since the applicant qualified for retirement under another provision of law.

10.  The instructions on the DD Form 2656-5 on the front of the form clearly state, "The decision you make with respect to participation in the Reserve Component Survivor Benefit Plan is very important.  A decision to decline coverage means 
you will not have another opportunity to select coverage until age 60.  A decision to participate, that is to select either Option B or C, is permanent and cannot be changed unless authorized by law [emphasis added], such as the opportunity to terminate your participation during the period that is between your 62nd birthday 
and the day before you reach age 63, at which time you may elect to discontinue participation.  Please review the program details carefully and consider the effects of your decision before making an election."

11.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP 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. Elections are made by category, not by name, and are irrevocable except as provided for by law.


12.  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 (emphasis added).

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record, the applicant must show, 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. 

2.  On 15 April 2008, the applicant completed a DD Form 2656, Data for Payment of Retired Personnel.  In this form, he indicated he was married and had a dependent child.  The applicant elected coverage for his spouse and his child based on full gross pay even though he now alleges he was not properly informed about all the provisions of the SBP.  In addition, he alleges that he was not informed before he reported that his spouse had to accompany him if he elected not to select the SBP.  He now states that he was informed that since his spouse was not there, he had to select SBP.  He is now requesting that he be allowed to cancel his SBP election since he was not properly informed.

3.  The applicant signed the Data for Payment of Retired Personnel form.  The following statement appears in Item 32, of the form:  "I have been counseled that I can terminate SBP participation, with my spouse's written concurrence, within one year after the second anniversary of commencement of retired pay.  However, if I exercise my option to terminate the SBP, future participation is barred."  It is believed that the applicant, an Army Sergeant Major, read and understood the statement and/or knew enough to ask for clarification if he did not understand the provisions and the benefits of participation in the SBP.

4.  In conjunction with the applicant's request for cancellation of participation in the SBP, his spouse provided a notarized statement stating she accepted [agreed with] the applicant's request to disenroll from participation in the SBP.  The applicant's spouse added that she would like to request a refund of all monies [premiums] deducted from the applicant's pay for participation in the SBP to date.

5.  Public Law 105-85, enacted 18 November 1997, established the option to terminate participation in the SBP.  Retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started to withdraw from the SBP.  To withdraw from participation in the SBP, the spouse’s concurrence 
is required.  The applicant will not be entitled to the return/refund/reimbursement of any of the monies being paid into the program since it should be noted and understood that while premiums are being paid into the SBP the applicant’s spouse and children are covered by the SBP and they will be provided an annuity in the event of the applicant’s untimely death.

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)                                         AR20080009790



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ABCMR Record of Proceedings (cont)                                         AR20080009790



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