IN THE CASE OF:	  

		BOARD DATE:	    20 July 2010

		DOCKET NUMBER:  AR20090020841 


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 his record be corrected to show that he did not enroll in the Survivor Benefit Plan (SBP) and that he be reimbursed for any and all deductions from his retirement pay.

2.  The applicant states the following:

* he was never informed he had to decline the SBP within 1 year of his divorce from his former spouse
* he received no written communications from the military to keep him informed of these circumstances
* the Tennessee Army National Guard requested that he complete a DD Form 2656 (Data for Payment of Retired Personnel) in 2008 for inclusion in his application for retired pay
* he completed the DD Form 2656 and declined SBP

3.  The applicant provides the following:

* divorce decree
* certified copy of marriage register
* DD Form 2656

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 4 January 1949.  He married his first spouse on 25 July 1969.
2.  The applicant enlisted in the Tennessee Army National Guard on 10 January 1970 and continued to serve in this component until he was discharged on 15 March 1991 in the rank of staff sergeant.  On the following day, he was transferred to the U.S. Army Reserve Control Group (Retired Reserve).

3.  On 18 October 1991, the applicant completed a DD Form 1883 (SBP Election Certificate) and elected Reserve Component SBP (RCSBP) for immediate spouse coverage, full base amount, option C.

4.  The applicant's Notification of Eligibility for Retired Pay at Age 60 (20-year letter) is not available.

5.  The applicant divorced his first spouse on 5 August 1999.  The divorce decree grants her a portion of current retired pay, but does not give her former spouse SBP coverage.

6.  He remarried on 22 February 2003.

7.  On 21 June 2008, the applicant completed a DD Form 2656 and elected not to participate in the SBP.  His spouse signed the DD Form 2656 under section XII (SBP Spouse Concurrence) to indicate she concurred with the applicant's decision to decline participation in the SBP.

8.  The applicant reached age 60 on 4 January 2009.

9.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  It required a 2-year waiting period for new spouse eligibility following post-retirement marriage.  Public Law 94-496, enacted 14 October 1976, reduced this waiting period to 1 year following post-retirement marriage.

10.  Public Law 94-496, enacted 14 October 1976 (but effective 1 October 1976), provided for the suspension of spouse costs if marriage ends in death or divorce.

11.  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 option 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.

12.  Public Law 99-145, enacted 8 November 1985, permitted a previously participating retiree upon remarriage to elect not to resume spouse coverage or to increase reduced coverage for the latter spouse (requiring a payback with interest of SBP premiums prior to first anniversary of remarriage).  Changes must be made prior to the first anniversary of remarriage or else the previously suspended coverage resumes by default on the first day of the month following the first anniversary of the remarriage, with costs owed from that date.  An election to terminate spouse coverage under this law, once made, is irrevocable.

13.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a 1-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.  Reservists who elected an option under the RCSBP will continue to have the Reservist Portion cost deducted from their retired pay.  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 contends he was never informed he had to decline the SBP within 1 year of his divorce from his former spouse and he received no written communications from the military to keep him informed of these circumstances.  However, as a gray-area retiree, the applicant should have been receiving Army Echoes, which provides information on the SBP.  He also had the opportunity to inquire about terminating his enrollment in SBP at his nearest Retirement Services Office, the nearest Army National Guard unit, or the U.S. Army Human Resources Command - St. Louis.

2.  The applicant enrolled in the RCSBP in October 1991 and elected spouse coverage, full base amount.  He was married to his first spouse at the time.

3.  The evidence of record shows the applicant divorced his first spouse in August 1999 and remarried in February 2003.

4.  The applicant completed a DD Form 2656 in June 2008 and elected not to participate in the SBP.  This declination was ineffective due to his original RCSBP election.  His first spouse was covered from 1991 to 1999 and his current spouse has been covered since 2004.

5.  The applicant became eligible to draw retired pay on 4 January 2009 and will have a 1-year period beginning on 1 February 2011 in which to terminate his SBP enrollment.  He will continue to pay RCSBP premiums for the past protection enjoyed by his first and current spouses although SBP premiums will cease.  He is encouraged to contact the nearest Retirement Services Office for more information prior to making his decision.

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)                                         AR20090020841



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ABCMR Record of Proceedings (cont)                                         AR20090020841



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