IN THE CASE OF:
BOARD DATE: 1 December 2009
DOCKET NUMBER: AR20090007088
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 military records be corrected by canceling his Survivor Benefit Plan (SBP) election for spouse coverage.
2. The applicant states, in effect, that upon his retirement from active duty in 2002 he was automatically enrolled in the SBP and that he was unaware of the requirements to opt out of the SBP program between the 25th and 36th month after retirement. He contends that he no longer wishes to be enrolled in the SBP because of serious financial difficulties and that he has personal private commercial insurance for his dependents and beneficiaries. He also states that the only way out of the SBP program is to wait until he is 70 years of age and paid into the program for 360 months.
3. The applicant provides a letter, dated 2 April 2009, from the Defense Finance and Accounting Service (DFAS) and a DD Form 2656-2 (SBP Termination Request) in support of his application.
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant retired effective 1 January 2002 in the rank of first sergeant/pay grade E-8.
3. The available records do not contain a DD Form 2656 (Data for Payment of Retired Personnel).
4. DFAS records show the applicant's current SBP election is automatic, the default election when a valid election is not received.
5. On 2 March 2009, the applicant submitted a DD Form 2656-2 to DFAS.
6. On 2 April 2009, DFAS responded to the applicant's request to terminate the SBP. He was informed that he only had a one year window to withdraw from the SBP, starting with the 25th month through the 36th month after his eligibility to receive retired pay, and that since he had been retired for more than 36 months he was not eligible to withdraw.
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.
8. 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.
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. 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. Extensive publicity was given in Army Echoes, the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army.
DISCUSSION AND CONCLUSIONS:
1. It appears that consistent with applicable law, the applicant was automatically enrolled in the SBP for spouse coverage upon his retirement because he did not make an SBP election. For the next seven years the applicant paid SBP premiums without complaint.
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 January 2004 for this applicant), to withdraw from the SBP.
3. The applicant's contention that when he retired in 2002 he was unaware of the requirements to opt out of the SBP program between the 25th and 36th month after retirement was noted. However, Army Echoes would have informed him of his option to disenroll from the SBP during the period 1 January 2004 through
1 January 2005.
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) AR20090007088
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20090007088
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2010 | 20100027486
However, on 17 November 2009, he and his spouse completed a DD Form 2656-2 requesting termination of his SBP. The available evidence shows he requested the SBP be terminated, and his wife concurred on 17 November 2009, only 4 months after he was placed on the TDRL. Public law states retirees have a 1-year period, beginning on the second anniversary of the date on which their retired pay started to withdraw from their SBP and that no premiums will be refunded to those who opt to disenroll.
ARMY | BCMR | CY2014 | 20140018353
Section XI (Certification) item 30 (Member) states, "Also, I have been counseled that I can terminate SBP participation, with my spouse's written concurrence, within 1-year after the second anniversary of commencement of retired pay. He provided a DD Form 2656-2 requesting termination of his SBP coverage. The evidence of record shows the applicant submitted a DD Form 2656 wherein he elected to participate in the SBP for spouse/children based on the full amount in the presence of an RSO counselor.
ARMY | BCMR | CY2009 | 20090004231
The applicant requests, in effect, that his military records be corrected by canceling his Survivor Benefit Plan (SBP) election for spouse coverage. 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. However, the option to terminate SBP participation was established in November 1997 and in 1998 Army Echoes would...
ARMY | BCMR | CY2011 | 20110023648
Item 19a (Mailing Address After Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 August 2011 be corrected to show an address in Oregon. The applicant provides: * DFAS email * DD Forms 214 for the periods ending 31 August 2011, 9 November 2005, and 30 April 1999 * DD Form 2656 (Data for Payment of Retired Personnel) * Retirement orders * Service computation for retirement * Service personnel records * Letters, dated 29 September...
ARMY | BCMR | CY2013 | 20130010128
The applicant provides: * Letter from DFAS, dated 4 April 2013 * DD Form 2656-2, dated 5 March 2013 * Letter from DFAS, dated 10 May 2013 * Notification of Eligibility for Retired Pay at Age 60 (20-year letter) * DD Form 1883 (SBP Election Form) CONSIDERATION OF EVIDENCE: 1. Public Law 106-398, dated 30 October 2000, requires that upon receipt of the 20-year letter, a qualified Reserve Component member who is married will automatically be enrolled in the RCSBP under option C (spouse and...
ARMY | BCMR | CY2014 | 20140019724
The applicant provides a letter of consent from his spouse requesting termination of her SBP coverage based on the applicant's 100-percent disability rating granted by the VA which entitled her to receive DIC upon the death of her husband. The evidence of record shows that the applicant elected to participate in SBP prior to his retirement on 1 October 2012. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * amending his...
ARMY | BCMR | CY2014 | 20140011696
The applicant requests correction of his military records to show he declined or terminated the Survivor Benefit Plan (SBP) spouse coverage. To terminate SBP, a service member has a 1-year window to withdraw from SBP, beginning the 25th month through the 36th month after his or her first eligibility to receive retired pay. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing his DD Form 2656-2 with his spouse's...
ARMY | BCMR | CY2013 | 20130000379
Since he has not had a 100 percent disability rating for at least 5 years, he is not eligible to disenroll from SBP under Public Law 96-402. Since his spouse concurred with this request to terminate participation in the SBP, and the law specifies that a participant in the SBP may elect to discontinue participation during the 25th through the 36th month after commencement of payment of retired pay, it would be equitable to correct his record to show he withdrew from the SBP on 1 September...
ARMY | BCMR | CY2010 | 20100023543
The applicant's DFAS-CL Form 7220/148 shows he is paying for SBP coverage for spouse only based upon his full gross retired pay. A retiree is automatically enrolled in SBP upon retirement at the maximum level of coverage for his or her respective surviving spouse and surviving dependent children unless the retiree elects not to participate, to participate at a lesser level of coverage, elects other than spouse coverage, or is ordered by a court to provide such benefits to a former spouse. ...
ARMY | BCMR | CY2013 | 20130004104
This law also provides that every member having a spouse and/or child(ren), who retired/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list. He elected SBP coverage for spouse and children based on the full amount. As a result, DFAS cannot automatically deduct SBP premiums from the member's monthly pay.