IN THE CASE OF:	  

		BOARD DATE:	        28 October 2008

		DOCKET NUMBER:  AR20080012944 


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 Survivor Benefit Plan (SBP) coverage be cancelled.

2.  The applicant states that he and/or his spouse are signed up for the SBP and that they did not know what the SBP was until they received a bill.  He also states that too many injured Soldiers are made to go through the retirement process basically intoxicated, which is not fair to the Soldiers or their families.  

3.  The applicant provides a copy of the March 2008 SBP Premium Bill in support of his application.

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service in the U.S. Marine Corps (USMC), the applicant’s records show he enlisted in the Oregon Army National Guard (ORARNG) for a period of 2 years and 11 months on 6 October 2003.  He was subsequently assigned to the 2nd Battalion, 162nd Infantry, Eugene, Oregon.

2.  On 12 October 2003, the applicant was ordered to active duty in support of Operation Iraqi Freedom and subsequently served in Iraq from 20 March 2004 to 10 July 2004.  He was placed on the Temporary Disability Retired List (TDRL) on 15 May 2006.  The highest rank he attained during his military service was specialist (SPC)/E-4.

3.  On 10 May 2006, the applicant completed a DD Form 2656 (Data for Payment of Retired Personnel).  On this form, he indicated that he was not married, but had a dependent son.  He elected to participate in the SBP, Children only coverage, based on the full pay.  However, he erroneously listed his son’s "3 June 2005" date of birth as "3 June 2006,” a date that is after his retirement date and after completion of this form.  He authenticated this form by placing his signature and date in the appropriate blocks.  Furthermore, a Retirement Service Officer witnessed the signature and placed his own signature and date in the appropriate blocks.

4.  On 18 January 2007, Joint Forces Headquarters, ORARNG, published Orders 018-024, honorably discharging the applicant from the ORARNG and reassigning him to the U.S. Army Reserve Control Group (Retired), effective 15 May 2006.

5.  The applicant submitted a copy of his March 2008 SBP Premium Bill which shows the March 2008 monthly cost of his SBP was $87.66 and that he owed $1,606.93 in back premiums.

6.  There is no record that the applicant attempted to terminate his participation in the SBP and there is no indication at DFAS that the applicant submitted any requests to terminate the SBP. 

7.  An email, dated 1 October 2008, from the Retired Pay Office, Defense Finance and Accounting Service (DFAS) confirms that the applicant's $87.66 monthly SBP premium was in error and based on "spouse" coverage.  The email also confirms that the correct premium for "child(ren)" coverage is $19.12 and that action would be taken to correct the monthly premiums.

8.  In view of the change in the SBP monthly rate, a member for the Board staff contacted the applicant telephonically on 2 October 2008 and 5 October 2008.  However, the applicant did not respond. 

9.  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. An election, once made, was irrevocable except in certain circumstances.  This Law also provides that every member having a spouse and/or child(ren), who retired/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list.


10.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that prior to his retirement, the applicant elected to participate in the SBP, children coverage.  It appears that he was counseled and authenticated this form in the presence of a retirement services officer.  There is no evidence that he was “intoxicated” at the time he made his decision to participate in the SBP. 

2.  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 (if the Soldier is married).  No premiums will be refunded to those who opt to disenroll.  

3.  The applicant could have made a written request to the Defense Finance and Accounting Service (DFAS) as early as 15 May 2008 (the beginning of the second anniversary of the date on which his retired pay started) to request disenrollment.  Additionally, although the applicant may have contacted DFAS telephonically to inquire about SBP cancellation, there is no evidence in the available records and the applicant failed to provide any evidence that shows he requested to terminate the coverage in writing or that DFAS received and/or denied his request.

4.  It appears that the applicant did not fully understand the financial implications concerning his decision to participate in the SBP.  His financial obligations were further burdened by the erroneous monthly premium rate of $87.66 for spouse coverage instead of $19.12.  

5.  In the interest of justice, the applicant's DD Form 149, dated 8 July 2008, is therefore accepted as sufficient to show he properly requested termination of his SBP, children coverage.  The date of his DD Form 149 shall serve as the termination date.  Furthermore, the requirement for the spouse to concur with the applicant's election to terminate the SBP, children coverage, is not needed in this case, since the spouse has no vested interest in the SBP benefit.




BOARD VOTE:

___X____  __X____  __X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that he made a proper, written request to terminate his SBP, children  coverage, on 8 July 2008 and that it was received and processed by the appropriate office in a timely manner to be effective 1 August 2008.



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      _______ _   _______   ___
               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)                                         AR20080012944



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ABCMR Record of Proceedings (cont)                                         AR20080012944



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