IN THE CASE OF:
BOARD DATE: 28 JULY 2009
DOCKET NUMBER: AR20090004444
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 military records be corrected by canceling his Survivor Benefit Plan (SBP) election for spouse and children coverage.
2. The applicant states, in effect, that when he applied for retirement on 18 June 2008 he enrolled in the SBP only after being assured that he could opt out of this program at any time by submitting a DD Form 2656-2 (Survivor Benefit Plan Termination Request). He contends that he has since learned that this information is not accurate and that he was incorrectly counseled.
3. The applicant provides a DD Form 2656-2 and a DD Form 2656 (Data for Payment of Retired Personnel) in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 12 November 1948. He married on 19 September 1970. Having completed 14 years, 6 months, and 9 days of prior commissioned service in the U.S. Air Force Reserve, the applicant was appointed a lieutenant colonel in the Army National Guard on 22 January 1987.
2. On 4 October 1991, the applicant received his notification of eligibility for retired pay at age 60 (his 20-year letter). The applicants DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 13 November 1991, shows he enrolled in the Reserve Component SBP (RCSBP) for spouse and children coverage, full base amount, Option C (immediate coverage). Section II of this form stated, IMPORTANT: The decision you make with respect to participation in this Survivor Benefit Plan is a permanent irrevocable decision. Please consider your decision and its effect very carefully.
3. On 31 May 1994, the applicant was honorably discharged from the Army National Guard and assigned to the U.S. Army Reserve Control Group (Retired).
4. The applicant turned age 60 on 12 November 2008.
5. In support of his claim, the applicant provided a DD Form 2656, dated
18 June 2008, which shows he elected SBP for spouse coverage. He also provided a DD Form 2656-2, dated 29 December 2008, which shows he requested to discontinue participation in the SBP and his wife concurred with this election.
6. 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.
7. 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. Once a member elects either options B or C in any category of coverage, that election is irrevocable. Option B and C participants do not make a new SBP election at age 60. They cannot cancel SBP participation or change options they had in RCSBP, and RCSBP coverage automatically rolls into SBP coverage.
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 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 applicants DD Form 1883 shows that he enrolled in the RCSBP for spouse and children coverage on 13 November 1991. That was an irrevocable election that rolled over into the standard SBP upon reaching age 60. Therefore, there is no basis for granting the applicants request.
2. The law provides that retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started (1 December 2010 for this applicant), to withdraw from the SBP. However, SBP premiums already paid will not be refunded to him and he will be barred from ever
re-enrolling in the SBP. Moreover, any costs still owed for RCSBP spouse coverage (from 13 November 1991 until 1 December 2008) will continue to be deducted from his retired pay until the amount is paid in full.
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) AR20090004444
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ABCMR Record of Proceedings (cont) AR20090004444
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