IN THE CASE OF:	  

		BOARD DATE:	  10 December 2009

		DOCKET NUMBER:  AR20090011231 


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, cancellation of his Survivor Benefit Plan (SBP) election.

2.  The applicant states that he applied for the SBP for his wife and daughter on 23 July 2008 and presumed he would be afforded the opportunity to disenroll because his decision was part of the initial retirement process.  He also states that after numerous appointments, he chose not to enroll in the SBP; however, his initial decision to enroll in the SBP was processed and SBP premiums in the amount of $192 are being taken out of his retired pay.  He adds that it was not his intent to enroll in the SBP and requests that his records be corrected to show that he declined participation in the SBP and that all premiums he has paid be refunded.

3.  The applicant provides, in support of his application, a copy of a DA Form 2656 (Data for Payment of Retired Personnel) and DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve on 16 December 1982.  He then enlisted and entered active duty in the Regular Army (RA) on 27 May 1983.
He continued to serve on active duty and attained the rank of master sergeant/ pay grade E-8.

2.  On 23 July 2008, the applicant completed a DD Form 2656.  Section VIII (Dependency Information) of the form shows that he was married and had one dependent child.  Section IX (Survivor Benefit Plan (SBP) Election) shows he requested full SBP coverage with spouse and child coverage.  Part XI (Certification) of the DD Form 2656 states, in pertinent part, "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 my option to terminate the SBP, future participation is barred."  This document also shows that the applicant and an Army SBP counselor each affixed their signature on the document.

3.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he retired from the RA on 31 May 2009 after serving honorably on active duty for a total of 26 years and 4 days.  He was placed on the Retired List effective 1 June 2009.

4.  In connection with the processing of this case, the General Processing Branch, Defense Finance and Accounting Service (DFAS), Cleveland, Ohio, was asked to verify information relevant to the applicant's SBP election, coverage, and participation.  DFAS verified the applicant completed a DD Form 2656 on
23 July 2008 and requested full SBP coverage with spouse and child coverage.

5.  Public Law 92-425, the Survivor Benefit Plan, 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.  

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 started, 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 contends that the SBP election he made on 23 July 2008 should be rescinded, his enrollment in the SBP cancelled, and all SBP premiums he has paid should be refunded because his decision was part of the initial retirement process and he subsequently decided not to enroll in the SBP.

2.  The evidence of record confirms that on 23 July 2008, in his application for retired pay, the applicant made his SBP election for spouse and child coverage based on the full amount of his military retired pay.  The evidence of record also shows the applicant retired effective 1 June 2009 and monthly SBP premiums are being deducted from his military retired pay.

3.  There is no evidence of record, and the applicant provides insufficient evidence, that shows he took action to change or terminate his SBP enrollment at any time during the period from 23 July 2008 through 31 May 2009, the day prior to the date he was placed on the Retired List.

4.  The evidence of record confirms that the applicant's SBP election is correctly recorded in his military service records and SBP premiums are being deducted from his military retired pay by the DFAS.  Therefore, the applicant is not entitled to correction of his records to show that he rescinded his election to participate in the SBP, nor is he entitled to a refund of the SBP premiums.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  The applicant is advised that retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from SBP.  However, the spouse's concurrence is required and no premiums will be refunded to those who opt to disenroll.  The applicant may obtain a copy of a DD Form 2656-2 (Survivor Benefit Plan (SBP) Termination Request) from the Official Department of Defense Issuances (Forms Management Program) website at: http://www.dtic.mil/whs/directives/infomgt/forms/formsprogram.htm.

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)                                         AR20090011231



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ABCMR Record of Proceedings (cont)                                         AR20090011231



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