IN THE CASE OF:
BOARD DATE: 23 July 2009
DOCKET NUMBER: AR20090004162
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 participation in the Survivor Benefit Plan (SBP) be cancelled.
2. The applicant states, in effect, he does not want to remain in the SBP due to hardship.
3. The applicant provides no additional documentary evidence in support of this application.
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 2 January 1949 and enlisted in the U. S. Army Reserve (USAR) on 6 April 1968. He continued to serve through a series of continuous reenlistments.
2. On 21 November 1988, the applicant received his Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter). This letter informed the applicant, in pertinent part, that he was entitled to participate in the Reserve Component SBP (RCSBP) established by Public Law 95-397, which enabled him to provide an annuity for his spouse and other eligible beneficiaries.
3. On 15 February 1989, the applicant completed a DD Form 1883 (Survivor Benefit Plan Election Certificate). On this form, he elected to participate in the RCSBP for spouse only coverage, based on the full amount of his retired pay, Option C (immediate coverage). The front side of the DD Form 1883 states, "IMPORTANT: The decision you make with respect to participation in the Survivor Benefit Plan is a permanent irrevocable decision. Please consider your decision and its effect very carefully." The back side of this form is not available for review.
4. On 3 June 1994, the applicant was transferred to the Retired Reserve with
20 or more qualifying years of service for retirement.
5. Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60. Three options are available: (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member's 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.
6. 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 starts, 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 applicant requests that his participation in the SBP be cancelled.
2. The evidence of record confirms that in 1989, upon becoming eligible to receive retired pay at age 60, the applicant elected SBP spouse only coverage (based on the full amount of his retired pay) and Option C (immediate coverage), as evidenced by the DD Form 1883 he completed at that time. The SBP statute provides that an election, once made, is irrevocable, except as provided for by law. Additionally, the DD Form 1883 advised the applicant that the SBP election would be irrevocable. Furthermore, the Board may not act to terminate SBP for spouse coverage without the consent of the spouse. The applicant presented no evidence showing that his spouse concurs with his request to cancel participation in the SBP for spouse coverage.
3. The evidence of record shows that the applicant attained age 60 and eligibility for retired pay on 2 January 2009. The SBP statute states that retirees have a one-year period, beginning on the second anniversary of the date on which their
retired pay starts, to withdraw from SBP; however, the spouse's concurrence is required.
4. In view of the foregoing, there is no basis to grant 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.
_______ _ 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) AR20090004162
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ABCMR Record of Proceedings (cont) AR20090004162
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