IN THE CASE OF:
BOARD DATE: 27 July 2010
DOCKET NUMBER: AR20090021734
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 military records to show that he declined to participate in the Survivor Benefit Plan (SBP) and that he receive a refund of all premiums paid.
2. The applicant states that he retired from the US Army on 31 January 2009. During his out-processing, he visited the Retirement Services Officer (RSO) who asked him if he wanted to enroll in the SBP. The SBP was explained to him as a benefit that would provide his wife with half of his retired pay for life should he pass away. Believing SBP was another benefit from the system offered to retirees, and without the knowledge that it included a monthly premium, he decided to enroll. The applicant contends that he was not informed by the RSO that he would have to pay a monthly premium and that he was also incorrectly told he could disenroll the following year.
3. The applicant provides, in support of his application, copies of signed statements from him and his wife declining SBP, retirement orders, a DD Form 2656 (Data for Payment of Retired Personnel), and DFAS-CL 7220 (Retiree Account Statement) effective 5 May 2010.
CONSIDERATION OF EVIDENCE:
1. At the time of his application, the applicant was a lieutenant colonel, pay grade O-5, retired from the US Army.
2. Orders 324-0001, US Army Installation Management Command, Fort Buchanan, Puerto Rico, dated 19 November 2008, released the applicant from assignment and duty due to physical disability, effective 30 January 2009. He was placed on the retired list effective 31 January 2009, in the pay grade O-5.
3. A DD Form 2656 shows he elected SBP coverage for his spouse based on his full gross pay. Item 30 shows that he certified that he was counseled that he could terminate SBP participation within one year after the second anniversary of commencement of retired pay. The form was signed and witnessed. The form is dated 19 November 2008.
4. DFAS-CL 7220, effective 5 May 2010, shows the applicant's monthly SBP costs as $206.12.
5. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP 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.
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 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 contends that he was not informed that the SBP required a monthly premium and he was misinformed about how long he had to remain in the program before he could request to withdraw.
2. The evidence clearly shows the applicant elected SBP coverage for his spouse based on his full gross pay. Furthermore, he has been enrolled in the SBP since the date of his retirement. Had he died, his spouse would have been eligible to receive benefits. SBP is no more than an insurance policy. Premiums for past periods of coverage are not refunded.
3. There is no independent evidence available supporting the applicant's contention that he did not know about the monthly premium, or that he was misled about when he can disenroll. He signed the DD Form 2656 certifying he was counseled when he could disenroll.
4. The applicant's retired pay commenced on 1 February 2009. He will have a 1-year period beginning on 1 February 2011 in which to terminate his SBP enrollment, provided his spouse concurs. He is encouraged to contact the nearest RSO prior to making his decision for more information.
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) AR20090021734
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ABCMR Record of Proceedings (cont) AR20090021734
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