IN THE CASE OF:
BOARD DATE: 23 JUNE 2009
DOCKET NUMBER: AR20090001714
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 Survivor Benefit Plan (SBP) termination be cancelled and his SBP be reinstated.
2. The applicant states, in effect, that his SBP termination decision was based on a spousal diagnosis of terminal cancer in 1999, the realization he would outlive his spouse, and more importantly the need for additional monetary funding to offset the medical expenses. His spouse died in 2000. He acknowledges that he understood at the time of the termination from SBP such an action would preclude re-entry for the existing marriage but was not aware of or was told that it would effect a possible future unknown marriage. He indicates that he remarried in October 2007 and he has the responsibility to ensure his new spouse has financial security in the case of his death. He points out that although the SBP termination decision was voluntary, he believes that decision and the Army's literal interpretation of that decision is unjust in light of two separate marriages involved and the circumstances driving the original termination request.
3. The applicant provides a letter, dated 10 October 2008, from the Army Retirement Services, Office of the Deputy Chief of Staff G-1; letters, dated
14 August 2008 and 18 September 2008, from the Defense Finance and Accounting Service; a DD Form 2656-6 (Survivor Benefit Plan (SBP) Termination Request); a death certificate; a marriage license; a request to enroll his spouse in the SBP, dated 18 July 2008; and requests for reconsideration for SBP, dated
25 August 2008 and 25 September 2008, in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 31 December 1938. He entered active duty in the Regular Army on 29 June 1961.
2. The applicant's DA Form 4240, dated 27 May 1981, shows he enrolled in the SBP for spouse and dependent children, full base amount.
3. The applicant retired in the rank of lieutenant colonel on 30 June 1981 after completing over 20 years of active service.
4. A DA Form 2656-2, dated 14 May 1999, shows the applicant requested to discontinue participation in the SBP. The form states, in pertinent part, that "I further understand that once I discontinue SBP, I cannot reenter the Plan." The applicant's spouse concurred with his decision to terminate SBP.
5. The applicant's spouse died on 21 July 2000.
6. The applicant remarried on 6 October 2007.
7. On 18 July 2008, the applicant submitted a request to DFAS to enroll his spouse in the SBP.
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.
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. Members retired for more than two years as of 17 May 1988 were authorized a one-year opportunity (17 May 1998 through 16 May 1999) to disenroll. 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:
The evidence of record shows the applicant submitted a DD Form 2656-2 on
14 May 1999 to terminate his participation in the SBP. The form is very clear and states "I further understand that once I discontinue SBP, I cannot reenter the Plan." Regrettably, 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.
_______ _ _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) AR20090001714
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