IN THE CASE OF:	  

		BOARD DATE:	        12 March 2009

		DOCKET NUMBER:  AR20080017772 


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 his DD Form 2656 (Data for Payment of Retired Personnel), dated 15 May 2008, be corrected to show he elected not to participate in the Survivor Benefit Plan (SBP).

2.  The applicant states that he and his spouse were not properly informed that the SBP cost was monthly and not yearly.  The applicant continues that they were not shown a cost example chart.  He further states that the SBP deduction would be a financial hardship.

3.  The applicant provides a self-authored letter, subject:  Request for Correction of Uniformed Services Survivor Benefit Plan (SBP) Election; a letter from his spouse, subject:  Request for Correction of Uniformed Services Survivor "Plain"  (SBP) Election; a letter from the Survivor Benefits Counselor, dated 4 September 2008; and letter from the Department of the Army Office of the Deputy Chief of Staff G-1, dated 17 September 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Massachusetts Army National Guard on 21 June 1968 and entered active duty in an Active Guard Reserve status on 1 August 1983.  He was promoted to master sergeant on 1 April 1998.

2.  The applicant's DD Form 2656, dated 15 May 2008, shows in Section IX (Survivor Benefit Plan Election) that he elected to participate in the SBP.  On this form he indicated that he elected spouse SBP coverage, full base amount.  Section XI shows that the applicant's spouse concurred with his SBP election on 15 May 2008.

3.  The applicant retired from active duty on 31 July 2008.

4.  The applicant provided an undated letter addressed to Department of the Army SBP Board.  The applicant stated, "I feel that I was not properly counseled because I thought the cost was yearly not monthly, and now it presents a severe financial hardship."  He continued that he discussed the matter with his spouse and they both concur that they want to cancel the election and terminate the coverage.

5.  The applicant provided a notarized letter from his spouse addressed to the SBP Board, dated 2 September 2008.  The spouse stated she initially agreed with the applicant’s election on 15 May 2008 for full SBP.  She did not realize the true cost of the plan and was under the impression that the quoted cost of the plan was yearly, not monthly, even though the SBP counselor showed them the SBP Cost Chart for 6.5 percent of the base amount.  In her letter, the spouse declined the SBP and stated that she understood that she would not receive any part of her spouse’s retired pay without SBP coverage.

6.  The applicant provided a letter from the Survivor Benefits Counselor, dated 4 September 2008, addressed to the SBP Board.  The author stated that the applicant was requesting cancellation of his SBP election.  The author stated that the applicant felt that he was not properly counseled and that it was not made clear that the cost was monthly, not yearly.  The author continued that whatever the applicant did not fully understand or was not listening to, the applicant did not verbally mention any confusion about the cost during the interview.

7.  The author stated that she showed the applicant the SBP Cost Examples for 2008, but may have been negligent in assuming he understood.  The author recommended that the applicant's request to stop coverage be accepted.

8.  A letter, dated 17 September 2008, from the Chief, Army Retirement Services (ARS), Office of the Deputy Chief of Staff G-1, shows that the applicant's request to change his SBP election from "Spouse" to "Decline, Spouse Excluded" was not favorably considered.  The Chief, ARS, stated that the applicant's failure to understand or ask for clarification on the cost did not constitute a government administrative error.  The Chief, ARS, indicated that the applicant and his spouse were briefed using the SBP Cost Examples for 2008 which listed the amount as monthly, and that the applicant did not ask for clarification on the cost.

9.  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.

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.  The effective date of termination is the first day of the first calendar month following the month in which the election is received by the Secretary concerned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he and his spouse were not properly informed that the SBP cost was yearly and not monthly.  However, if he had any questions, the applicant, a senior noncommissioned officer, had a responsibility to himself to obtain information on the SBP prior to signing any document presented to him.

2.  The evidence of record shows that the applicant retired on 31 July 2008.  He elected spouse SBP coverage, full base amount, and the applicant's spouse concurred with his SBP election on 15 May 2008.  The SBP statute states that retirees have a 1-year period beginning on the second anniversary of the date on which their retired pay started to withdraw from SBP; however, again, the spouse's concurrence is required.

3.  In view of the foregoing, there is no basis for granting the applicant's request.  He may elect to withdraw from the SBP with his spouse's concurrence during the 1-year period beginning 1 August  2010 and ending 31 July 2011.


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)                                         AR20080017772



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ABCMR Record of Proceedings (cont)                                         AR20080017772



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