IN THE CASE OF:
BOARD DATE: 17 MARCH 2009
DOCKET NUMBER: AR20080017823
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 cancellation of his Survivor Benefit Plan (SBP) coverage.
2. The applicant states, in effect, that the SBP is causing financial hardship for his family.
3. The applicant provides a copy of his Decree of Dissolution of Marriage (Divorce) Without Children, a copy of his Marriage Certificate, and a self - authored letter in support of this application.
CONSIDERATION OF EVIDENCE:
1. The applicant's record shows that he enlisted in the Regular Army on
8 November 1976. He completed basic combat and advanced individual training and was awarded military occupational specialty 11C (Indirect Fire Infantryman). He retired from the Army in the rank of staff sergeant/E-6 on 30 November 1996.
2. A copy of the applicant's DD Form 2656 (Data for Payment of Retired Personnel), dated 3 September 1996, was obtained from the Defense Finance and Accounting Service (DFAS) located in Cleveland, Ohio.
3. On 3 September 1996, in preparation for his retirement, the applicant completed a DD Form 2656. In Block 26g (Beneficiary Category(ies)), he elected Not to participate in the SBP" by placing an "X" in Item 26g (I Elect Not to
Participate in the SBP). He also placed an "X" in the box stating he did not have eligible dependents under the plan. The applicant authenticated this form by placing his signature in Item 32a (Member Signature) and the date "3 September 1996" in Item 32b (Member Date Signed).
4. The applicant married on an unknown date. He provided a copy of his Decree of Dissolution of Marriage (Divorce) Without Children, dated 24 March 2006.
5. The applicant provides a copy of his Marriage License that shows he was married to his current spouse on 28 April 2006. Records at DFAS indicate he enrolled in the SBP for spouse coverage after this marriage. However, DFAS records indicate SBP premiums were not deducted until around July 2008, resulting in back premiums due from the period 1 May 2007 through
30 November 2007 at $84.76 per month and from 1 December 2007 through
31 July 2008 at $86.71 per month.
6. The applicant also provided a self-authored letter, dated 8 October 2008, which in essence states that he was not aware that enrolling in the SBP would incur a debt nor was he informed that the debt would be taken out without him being notified of the amount that would be deducted from his retired pay.
7. 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. An election, once made, was irrevocable except in certain circumstances.
8. Title 10, U.S. Code, section 1448(a)(5) provides that a person who is not married and has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP. Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions that his SBP should be cancelled and the deduction of monthly payments from his retirement pay should be discontinued were carefully considered and found to be without merit.
2. The applicant did not have the SBP upon retirement, but he did enroll within one year after his marriage to his current spouse. As a result, his SBP became effective 1 May 2007, and his election is irrevocable.
3. Back premiums began effective 1 May 2007 and continued through
31 July 2008, thereby providing SBP coverage for his current spouse as requested by the applicant.
4. 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 did not submit evidence that would satisfy this requirement. Regrettably, there is no basis for granting the relief requested.
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.
__________XXX____________
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) AR20080017823
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ABCMR Record of Proceedings (cont) AR20080017823
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