IN THE CASE OF:	  

		BOARD DATE:	    12 January 2010

		DOCKET NUMBER:  AR20090010144 


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 Survivor Benefit Plan (SBP) coverage be terminated.

2.  The applicant states that it is an injustice to him and his spouse to continue to pay for SBP coverage that they do not want or need.  He maintains that continuing the unwanted SBP at a cost in excess of $2,200.00 until either his death, divorce of his wife, or until he reaches 90 years of age is unjust.  The applicant states that he and his spouse have more than adequate life insurance.  He adds that several years ago when he inquired about dropping SBP coverage, he was led to believe the deductions would cease in October 2008, when he exceeded 360 months from his first enrollment in SBP.  He maintains that he did not learn the truth until he received his first Retirement Account Statement, dated 2 December 2008.

3.  The applicant provides numerous electronic mails (e-mails), a letter from the Defense Finance and Accounting Service (DFAS) with SBP payment information, a DD Form 2656-11 (Statement Certifying Number of Months of Survivor Benefit Plan Premiums Paid), a Retirement Account Statement, a newspaper article, and estate planning documents.

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 applicant’s 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 applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was born on 11 October 1931.  He was retired from the United States Army National Guard on 11 October 1991.

3.  The applicant’s RAS, dated 2 December 2008, shows SBP monthly costs of $188.05 of which $60.19 was the Reserve Component SBP (RCSBP) cost. 

4.  A letter from Retired and Annuity Pay, DFAS, dated 30 January 2009, explained to the applicant the Paid-Up provisions of SBP.  The letter stated that to be considered Paid-Up for SBP purposes, the applicant must be at least 
70 years of age and have paid into SBP for at least 360 months.  DFAS said their records indicate the applicant had paid into the plan for 207 months and was 
77 years old.  DFAS further explained that as a reservist, SBP premium deductions did not commence until he reached 60 years of age.  Additionally, he was provided documentation that shows his SBP premium deductions start date was 11 October 1991 with the note "If the start date is any day other than the first, SBP costs begin on the first of the following month."  The end date was listed as 31 January 2009, for a total of 207 payments.

5.  The applicant’s DD Form 2656-11 shows that on 8 January 2009 he verified that he had been notified by DFAS of the requirement to have 360 plus months toward Paid-Up SBP. 

6.  E-mail correspondence between the applicant and Retired Pay, DFAS, dated May 2009, shows the applicant wanted to give up the coverage under SBP and return the amount in his account to the general money pool.  However, he was told that there was nothing in the law that would allow him to do this.  DFAS further stated that spouse coverage for SBP could only be terminated by divorce or death of the spouse. 

7.  The applicant provided a newspaper article entitled "Appeal process open for 'Paid-Up SBP' program" stated that "Retirees can challenge DFAS payment records until 30 June."

8.  Information provided by DFAS verified that on 22 October 1979, the applicant completed a DD Form 1883 (Survivor Benefit Plan Election Certificate) for immediate coverage.  The DD Form 1883 stated, "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."

9.  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.  Changes in SBP options are not authorized except in specific instances as authorized by law.

10.  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.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay.  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 – it automatically rolls into SBP coverage.  If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection had the member died prior to age 60.

11.  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 1998 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.  Reservists who elected an option under the RCSBP may continue to have the Reservist Portion cost deducted from their retired pay.  This information was highly publicized in Army Echoes, an Army bulletin published and provided to retirees on a regular basis.

12.  Public Law 105-261, enacted 17 October 1998, established paid-up coverage under the SBP.  Effective 1 October 2008, no reduction may be made in the retired pay of a participant in the SBP for any month after the later of    :  (1) the 360th month for which the participant’s retired pay is reduced; or (2) the month during which the participant attains age 70.

DISCUSSION AND CONCLUSIONS:

1.  The applicant provided numerous documents that verify he is financially stable.  However, these documents have no bearing on the applicant's case and as such, do not justify terminating his SBP.

2.  The applicant’s DD Form 1883 informed him that his RCSBP election was an irrevocable decision.  The fact that he argues, in effect, that he was not aware of the cost of SBP coverage and/or the 360 months Paid-Up requirement is not sufficient justification to terminate his SBP coverage.  This provision of law was not established until years after he retired.  

3.  The applicant could have disenrolled from the SBP during the period May 1998 through May 1999.  There is no evidence to show that he attempted to do so.

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)                                         AR20090010144



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ABCMR Record of Proceedings (cont)                                         AR20090010144



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