IN THE CASE OF:	

		BOARD DATE:	  30 October 2008

		DOCKET NUMBER:  AR20080012355


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 to discontinue taking out the [Survivor Benefit Plan (SBP)] annuity for her spouse from her retired pay and refund what has been taken out of each check since her retirement.

2.  The applicant states that she has in her possession the DD Form 2656 (Data for Payment of Retired Personnel) which she received from her former unit that closed out her records about a year ago.  The DD Form 2656 clearly states, "I elect not to participate in SBP."  She states that she has automatic deposit to her account so she never saw what was taken out of her retired pay.  She tried to call the Military Pay Office many times before, but was unable to get through until 11 July 2008.  She assumes that the error was made by someone when her retired pay was set up.

3.  She states that several people told her that the original DD Form 1883 (SBP Election Certificate) she filled out after she received her 20-year letter was missing.  She has tried unsuccessfully to locate the DD Form 1883 through the Georgia Army National Guard.  She has been married for over 40 years and has decided with her husband that since he has a good retirement income and he is 8 years older, she should not elect SBP for her husband.

4.  The applicant provides a copy of the DD Form 2656, dated 15 September 2004.


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 applicant’s 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 applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was appointed as a second lieutenant on 17 July 1965 with prior enlisted service, and served on active duty from that date until she was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement), St. Louis, Missouri, on 13 May 1967.  The applicant had a break in service from 1967 to 1982.

3.  She accepted appointment as a Reserve commissioned officer of the Army in the grade of first lieutenant on 6 March 1982.

4.  She was promoted to lieutenant colonel on 27 June 2001.  On 31 August 2004, she was separated from the Army National Guard and transferred to the Retired Reserve after completing 24 years, 2 months, and 17 days of creditable service toward eligibility for retired pay.  The applicant's date of birth is 13 August 1944.

5.  The applicant's record does not contain a copy of a DD Form 1883 or notification of eligibility for retired pay at age 60 (referred to as a 20-year letter).  The applicant reached age 60 on 13 August 2004.

6.  In reviewing the applicant’s record with the Defense Finance and Accounting Service (DFAS), the Army Liaison informed the Board's staff that the applicant's record does not have a DD Form 1883 and she failed to make an SBP election when she retired.  The SBP election was made two weeks after her date of retirement.  Therefore, the SBP coverage defaulted to maximum coverage for her spouse.  This caused a full premium collection from her retired pay.

7.  The applicant's record shows that the applicant retired on 31 August 2004 and she and her husband both signed the DD Form 2656 on 15 September 2004.

8.  Public Law 92-425, enacted 21 September 1972, repealed the Retired Serviceman’s Family Protection Plan and 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.  An election, once made, was irrevocable except in certain circumstances.

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.  Reserve members who elected an option under the Reserve Component (RC) SBP will continue to have the Reserve members' option cost deducted from their retired pay.

10.  An SBP election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).

DISCUSSION AND CONCLUSIONS:

1.  Since the applicant's record does not contain a DD Form 1883 and DFAS does not have one on file and there is no record of a 20-year letter, there is insufficient evidence to determine whether an election was made to provide an annuity for her spouse should the applicant die before reaching age 60.

2.  As such, it must be presumed that the applicant did not make an RCSBP election.  Therefore, she was required to make an SBP election prior to retirement.

3.  Since the applicant and her husband both signed the DD Form 2656, on 15 September 2004, two weeks after she retired, the SBP defaulted to automatic SBP spouse coverage.

4.  The applicant's statement is noted.  However, it is through the applicant's own negligence that the applicant did not know for the past 4 years that her SBP premiums were being taken from her retired pay.

5.  In view of the foregoing, there is no basis for granting the applicant's request.


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)                                         AR20080012355



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ABCMR Record of Proceedings (cont)                                         AR20080012355



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