IN THE CASE OF:	  

		BOARD DATE:	        07 APRIL 2009

		DOCKET NUMBER:  AR20080011481 


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 her records be corrected to reflect that she elected not to participate in the Survivor Benefit Plan (SBP) and that she be reimbursed for all of the deductions from her retired pay.

2.  The applicant states that she was counseled in error on how to complete the DD Form 2656 (Data for Payment of Retired Personnel) as indicated by the information contained therein.  She states that her spouse is aware of her request to this Board and that he agrees with her request to cancel her SBP deduction.

3.  The applicant provides a copy of her DD Form 2656 dated 30 June 2006 in support of her application.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 18 April 1948 and she accepted an appointment as a commissioned officer in the United States Army Reserve (USAR) in the rank of second lieutenant on 9 January 1986.

2.  The applicant was promoted to the rank of first lieutenant effective 8 January 1989, she was promoted to the rank of captain effective 7 January 1993, and she was promoted to the rank of major effective 31 August 1999.

3.  On 9 February 2006, while serving in the rank of major, the applicant received her Notification of Eligibility for Retired Pay at Age 60, also known as a 20-year letter.

4.  The applicant's records show that on 13 March 2006, she submitted a DD Form 2656-5 (Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate) in which she declined to make an SBP election until she reached age 60.  The DD Form 2656-5 was signed by her spouse.

5.  The DD Form 2656 that the applicant submitted in support of her application is dated 30 June 2006 and shows that she made no SBP beneficiary election (including no election to not participate); however, it also shows that she elected SBP coverage based on her full gross pay without supplemental SBP.  The DD Form 2656 was also signed by her spouse.

6.  The applicant was honorably discharged from the USAR and transferred to the Retired List on 18 April 2008 on her 60th birthday.

7.  On 11 September 2008, the Defense Finance and Accounting Service (DFAS) informed a Board analyst that the applicant's SBP began on 18 April 2008 and the deduction for her SBP premium began on 1 May 2008 because she elected to defer RCSBP and she did not make an SBP election on the DD Form 2656 at age 60.

8.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  The election must be made prior to the effective date or retirement or coverage defaults to spouse coverage, full base amount (if applicable).

9.  Public Law 95-397, the 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.  

10.  Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse's written concurrence for a retiring member's election that provides less than the maximum spouse coverage.

11.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a 1-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.  

12.  Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60.  The law is applicable to cases where 20-year letters have been issued after 1 January 2001.  In other words, failure to elect an option now results in the default election of option C.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that she was counseled in error on how to complete her DD Form 2656 has been noted; however, prior to making that election, she completed a DD Form 2656-5 on 13 March 2006 in which she opted to defer her election until she reached age 60.

2.  While the applicant submitted a DD Form 2656 dated 30 June 2006 which reflects that she made no SBP beneficiary election, the form also indicated that she elected SBP coverage based on her full gross pay without supplemental SBP.  That inconsistently-completed form resulted in confusion and she was automatically enrolled in the SBP with premiums automatically deducted from her retired pay.

3.  Additionally, the applicant has not submitted any current verification of her spouse's concurrence or non-concurrence with her desire to correct her records to show she elected not to participate in the SBP; therefore, it would not be appropriate for the Board to make the change she is requesting, which is to opt out of the SBP.  Her request would be reconsidered if she provided a current spousal concurrence.

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

5.  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.


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)                                         AR20080011481



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080011481



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1