IN THE CASE OF:
BOARD DATE: 22 July 2010
DOCKET NUMBER: AR20090020627
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 correction of his records to show he elected not to participate in the Survivor Benefit Plan (SBP).
2. The applicant states that during retirement out-processing his spouse was unavailable to sign the DD Form 2656 (Data for Payment of Retired Personnel). He adds that he forgot to have her sign the form until he received his first Retirement Account Statement (RAS) on 1 October 2009. He offers that he and his spouse both wish to terminate his enrollment in the SBP. The applicant maintains that he requested through the Defense Finance and Accounting Service (DFAS) that the SBP deduction be terminated on 14 October 2009, but he was informed that they were unable to stop his SBP allotment.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), DD Form 2656, RAS, and a notarized statement from him and his spouse.
CONSIDERATION OF EVIDENCE:
1. The applicant's records show he retired on 30 September 2009 in the rank of lieutenant colonel.
2. On 4 May 2009, the applicant completed a DD Form 2656 and he elected not to participate in the SBP. His spouse did not sign the DD Form 2656 under Section XII (SBP Spouse Concurrence) to indicate she concurred with the SBP decision made by her spouse.
3. The applicant's RAS, dated 2 November 2009, shows that he is paying SBP coverage, spouse only, in the amount of $265.92. He has paid one month towards his 360 months of paid-up SBP coverage.
4. In a notarized, undated, memorandum the applicant requested that his automatic enrollment in the SBP be terminated and all funds that had been applied towards his account be refunded. He cited the same information listed in his application to the Board as justification for termination of the SBP coverage. Additionally, he stated that his spouse never signed the DD Form 2656 and he was automatically enrolled into the SBP by law. The applicant insists that his spouse is in complete agreement with his decision. He added that it was their whole hearted intent to terminate enrollment in the SBP and he requests the allotment for SBP coverage be stopped immediately. Both the applicant and his spouse signed the memorandum.
5. Public Law 92-425, the SBP, enacted on 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. Elections are made by category, not by name. An election to decline to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse (or child only coverage, if applicable) coverage.
6. Public Law 105-85, enacted on 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 spouses 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 applicant retired on 30 September 2009.
2. The applicant completed a DD Form 2656 on 4 May 2009 and elected not to participate in SBP. His spouse did not sign the DD Form 2656 indicating she concurred with his decision to decline participation in the SBP.
3. Although the applicant states he requested that DFAS stop the automatic allotment for his SBP premiums on 14 October 2009 this was after he had retired and DFAS lacked the authority to terminate the SBP. Further, as noted in the notarized statement provided by the applicant, he was well aware that he would automatically be enrolled in the SBP if he failed to provide his spouse's concurrence declining the SBP.
4. The applicant was a senior officer in the Army and he had more than
4 months from the time he elected not to participate in the SBP (May 2009) to the time he retired (September 2009) to submit his spouse's concurrence. Therefore, he has not provided sufficient justification to terminate his SBP coverage.
5. The applicant is advised that he has a one-year period, beginning on the second anniversary of the date his retired pay started, to withdraw from SBP.
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) AR20090020627
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20090020627
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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