IN THE CASE OF:	  

		BOARD DATE:	        23 December 2008

		DOCKET NUMBER:  AR20080014829 


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 terminated effective 30 June 2006 and that all money collected be refunded to his bank account. 

2.  The applicant states that he and his family already have insurance to cover all means of surviving any unforeseen emergency.  He adds that he submitted a DD Form 2656-2 (Survivor Benefit Plan (SBP) Termination Request) to the Defense Finance and Accounting Service (DFAS) and that he was advised by a DFAS representative of the procedure and steps to follow in applying for this correction. 

3.  The applicant provides a copy of DD Form 2656-2, dated 5 July 2006; a copy of Orders C-05-690857, dated 4 May 2006, issued by the U.S. Army Human Resources Command (HRC)-St. Louis; and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 30 June 2006 in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he was born on 24 November 1951 and enlisted in the U.S. Army Reserve (USAR) on 16 May 1976.  He subsequently entered active duty for training, completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic).  His records also show he was ordered to active duty in an Active Guard Reserve (AGR) status on 26 September 1983.  

2.  The applicant’s records also show he executed several reenlistments in the USAR and attained the rank of sergeant first class (SFC).

3.  On 10 December 1997, the U.S Army Reserve Personnel Command issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified the applicant that he had completed the required years of service and would be eligible for retired pay upon application at age 60.  

4.  On 4 May 2006, HRC-St. Louis published Orders C-05-690857 ordering the applicant’s release from active duty effective 30 June 2006 and placing him on the Retired List in his retired rank of SFC effective 1 July 2007.

5.  On 8 June 2006, the applicant completed a DD Form 2656 (Data for Payment of Retired Personnel).  On this form, he indicated that he was married, but had no dependent children.  He elected to participate in the SBP, spouse coverage, based on the full gross pay.  He authenticated this form by placing his signature and date in the appropriate blocks.  Furthermore, a Retirement Services Officer witnessed the signature and placed her own signature and date in the appropriate blocks.

6.  The applicant was honorably released from active duty on 30 June 2006, transferred to the USAR Control Group (Retired), and placed on the Retired List on 1 July 2006.  The DD Form 214 he was issued shows he was credited with over 24 years of active duty.

7.  The applicant submitted a DD Form 2656-2, dated 5 July 2006, that shows he desired to discontinue participation in the SBP.  He authenticated this form by placing his signature and date in the appropriate blocks.  His spouse concurred with his decision.  She and a witness authenticated this form by placing their signatures and dates in the appropriate blocks.  

8.  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.



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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that prior to his retirement, the applicant elected to participate in the SBP, spouse coverage.  It appears that he was counseled and authenticated this form in the presence of a retirement services officer.  The applicant was a senior noncommissioned officer at the time he made his election.  He knew or should have known the implications of his decision.  

2.  With respect to termination of SBP enrollment, the applicant is advised that 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.  The applicant could have made a written request to the Defense Finance and Accounting Service (DFAS) as early as 1 July 2008 (the beginning of the second anniversary of the date on which his retired pay started) to request disenrollment; however; there is no indication that he did so.  

3.  Furthermore, by law, in order to terminate SBP enrollment, spousal concurrence is required.  The DD Form 2656-2, dated 5 July 2006, that contains his spouse's concurrence was invalid when submitted in July 2006 since it was not submitted within the time frame allowed by law.  Therefore, it cannot be accepted today to show that the spouse concurred with the decision.  When submitting his request to DFAS to terminate his SBP, the applicant must obtain a new concurrence from his spouse. 

4.  With respect to a refund of premiums paid, as stated earlier, 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.  If the applicant elects to terminate his SBP participation at that time, he is advised that despite his action, he is not entitled to a refund because the monthly deductions are the cost of the SBP coverage or protection the applicant's spouse enjoyed from the date the applicant made an election.



5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.   Therefore, he is not entitled to relief.

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)                                         AR20080014829



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ABCMR Record of Proceedings (cont)                                         AR20080014829



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