DOCKET NUMBER: AR20090003160
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 records be corrected to show he elected to terminate participation in the Survivor Benefit Plan (SBP).
2. The applicant states that his children are young adults and they do not live with him and his wife. He states that it is his ultimate responsibility is to ensure that financial hardship does not fall upon his children if he or his wife pass away. He claims that election of SBP was a hasty decision on his behalf and he agreed to the program with very little knowledge prior to retirement. He and his wife have researched and pursued other insurance programs that will benefit their children in the future and will prevent any financial responsibilities incurred by them. He states he contacted the Retirement Office at Schofield Barracks and was told that he was locked in for the rest of his life after the third year with SBP. He claims that this information was not clear to him upon signing up for SBP. Furthermore, he wants to discontinue the SBP due to the weak economy and reroute his current commitment in SBP to a new insurance program. He feels he should not be held liable to pay for something he does not want for the rest of his life.
3. The applicant provides a personal statement, dated 15 January 2009, and a notarized statement, dated 5 January 2009, from his wife in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 6 November 1978.
2. The applicant married on 7 November 1980.
3. On 17 November 2005, the applicant completed a DD Form 2656 (Data for Payment of Retired Personnel) electing to participate in the SBP for spouse and child(ren) coverage, full base amount without Supplemental SBP.
4. The applicant signed the DD Form 2656 under Section XII (Certification) which specifically states in part that "Also, I have been counseled that I can terminate SBP participation, with my spouse's written concurrence, within one year after the second anniversary of commencement of retired pay. However, if I exercise to terminate the SBP, future participation is barred."
5. The applicant retired on 1 December 2005.
6. In a 5 January 2009 notarized statement, the applicant's wife indicated she was present at the out-processing center during her husband's retirement process to sign the SBP documents. Her and the applicant's request for termination [of SBP] was strictly based on what a tremendous financial burden it would be to her husband and children (who are over the age of 22 years and not living at home with them). She also stated that she and the applicant researched other insurance programs that will benefit her family. They applied for and received approval of a program just after the third year of participating in the SBP. She claimed that it was not explained to her and the applicant that after the third year of participating in the SBP they would be locked in for life. She also stated that this new insurance plan will definitely ensure that all debts incurred by her and the applicant would prevent their children from financial hardship in case of her death, which the SBP does not provide.
7. 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. The member may elect not to participate (with their spouses concurrence, if required), but the election must be made before the first day for which the member is eligible to receive retired pay.
8. 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 spouses 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 retired on 1 December 2005. At that time, he elected SBP for spouse and child(ren) coverage.
2. By law, the applicant had from 1 December 2007 through 30 November 2008 to cancel his participation in the SBP. Although there is no evidence of record which indicates he submitted a request for termination at any time during this period, he only missed the deadline for cancellation of SBP participation by approximately 45 days.
3. As a matter of equity, it would be appropriate to amend the applicant's records to show he requested to terminate his SBP participation on 30 November 2008.
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 he elected to terminate his SBP participation in a timely manner to be effective 30 November 2008.
_______ _ __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) AR20090003160
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