IN THE CASE OF:	  

		BOARD DATE:	  9 September 2010

		DOCKET NUMBER:  AR20100008007 


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:

	a.  correction of his records to show he elected Survivor Benefit Plan (SBP) spouse coverage based on full gross pay instead of the reduced amount and

	b.  correction of his retiree account statement to show he has been contributing SBP premiums since 1985.

2.  The applicant states he initially retired on 1 December 1985.  He does not remember what SBP election he made at the time.  However, he was told by officials at the Defense Finance and Accounting Service (DFAS) he had elected spouse coverage based on a reduced amount as required by law at the time.  He requested the form that shows his election, but no one could produce this form.  He reentered active duty on 27 August 2006 under the Retiree Recall Program.  On 17 August 2009 prior to his release from active duty, he submitted a DD Form 2656 (Data for Payment of Retired Pay) wherein he elected spouse SBP coverage based on full gross pay.  However, the form was not accepted by DFAS because he had previously made an election for a reduced amount.  He contends that since he retired from active duty a second time on 26 August 2009, his 17 August 2009 election should take priority.  If favorably considered, he would like the effective date of the change to be the date of approval because he might not be able to afford the difference between what is now being deducted and the full cost of over $232.00 per month since his retirement.  Additionally, his most recent retiree account statement does not show he has been contributing to the SBP for 20 years and 9 months.

3.  The applicant provides the following documentary evidence:

* DD Forms 214 (Certificate of Release or Discharge from Active Duty), dated 30 November 1985 and 26 August 2009
* DD Form 2656, dated 17 August 2009
* retiree account statements, effective 10 September 2009 and 2 December 2009

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 29 July 1947 and married his spouse on 29 November 1968.

2.  Having had prior enlisted service, his records show he reenlisted in the Regular Army on 17 January 1975 and held military occupational specialties 71L (Administration Specialist) and 96B (Intelligence Analyst).

3.  On 20 June 1979 while still in an enlisted status, he was also appointed as a Reserve commissioned officer of the Army in the grade of first lieutenant.  He was promoted to captain on 19 July 1983.

4.  He served in his enlisted status through multiple reenlistments or extensions in various staff and leadership positions within and outside the continental United States.  He attained the rank/grade of first sergeant/E-8.

5.  The DA Form 4240 (Data for Payment of Retired Army Personnel) he completed in conjunction with his Regular Army retirement are not available for review with this case.  However, DFAS archives show that on or prior to 30 November 1985, he elected spouse SBP coverage based on a reduced threshold or base amount of $300.00.

6.  He was honorably retired on 30 November 1985 and placed on the Retired List in his retired rank/grade of first sergeant/E-8 on 1 December 1985.  He was credited with more than 20 years of creditable active service.

7.  His pay records also show he paid SBP premiums throughout the years based on his SBP election of the reduced amount.

8.  On 23 November 1994, he was advanced on the Retired List to the grade of captain, the highest grade he held.

9. On 18 May 2006, he submitted an application for active duty under the Retiree Recall Program.  He was subsequently ordered to active duty on 27 August 2006 in a retired status for a period of 1 year, later extended to 3 years, and served at Fort Huachuca, AZ.

10.  Prior to his 26 August 2009 release from active duty, he completed a DD Form 2656 on 17 August 2009 wherein he indicated he was married and elected spouse SBP coverage based on the full amount.  This form, submitted with his application to this Board, is not signed by a witness.

11.  He submitted two retiree account statements as follows:

	a.  His 10 September 2009 retiree account statement shows spouse SBP coverage based on the full amount.  It also shows a premium of $232.26 effective 1 October 2009.

	b.  His 2 December 2009 retiree account statement adjusted his spouse SBP coverage to reflect the threshold/base amount and adjusted his premium to $15.09.  This statement shows he had paid 3 months toward his 360 months of paid-up SBP coverage.

12.  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. An election, once made, was irrevocable except in certain circumstances.  Since its creation, it has been subjected to a number of substantial legislative changes. The base amount, also known as the threshold amount, ranges from a minimum of $300.00 to a maximum of full retired pay.  The reduced base amount must not be less than $300.00.  Spouse cost was 2.5 percent of the first $300.00 of the base amount plus 10 percent of the remaining base amount.

13.  Public Law 101-189, dated 29 November 1989, established a new computation for spouse and former spouse costs effective 1 March 1990 at a flat rate of 6.5 percent of the base amount.  The law allowed the old formula (2.5 percent of threshold amount plus 10 percent of remaining base amount) to be used if more favorable for members who were on active duty on or before 28 February 1990.  This law, as amended, also provided for an open season from 1 April 1992 through 31 March 1993 that gave certain eligible members, among other changes, an opportunity to elect or change SBP coverage, add spouse coverage, or increase the base amount of coverage during the open season.

14.  Public Law 105-261, dated 17 October 1998, established an SBP open enrollment period from 1 March 1999 to 29 February 2000 for members not participating to the fullest possible extent to add children to spouse coverage, increase existing coverage, elect coverage if none is in effect, or elect or increase supplemental SBP.  It required a one-time buy-in premium.

15. The National Defense Authorization Act for Fiscal Year 2005 established an open season from 1 October 2005 to 30 September 2006.  The retiree must pay monthly premiums starting on the date of enrollment and a buy-in premium covering all the costs that would have been paid for the election if it had been made at the first opportunity to do so.  The open season permitted a member to increase the amount of SBP coverage.

16.  Chapter 49, Department of Defense Financial Management Regulation 7000.14-R, volume 7B (Military Pay Policy and Procedures for Retired Pay), dated May 2001, states that prior to 1 October 1985 the minimum base amount for SBP was $300.00.  All SBP base amounts are increased by cost-of-living adjustments.  The adjustment to the base amount is made at the same time and by the same total percentage that retired or retainer pay is increased.  If a member before retirement elects a base amount that is less than full gross pay, the elected base amount is established as the initial base amount regardless of the cost-of-living adjustment that applies to the initial computation of retired pay.

17.  Before 1 March 1986, initial SBP cost was computed on a standard formula of 2.5 percent of the first $300.00 of the base amount and 10 percent of the base amount in excess of $300.00.  When retired pay increased by a cost-of-living adjustment under Title 10, U.S. Code, section 1401a, the SBP premium was recomputed under the standard cost formula.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his SBP election should be changed from the reduced amount to the full amount.

2.  The evidence of record shows that prior to his retirement in 1985 he appears to have executed an SBP Election Certificate, electing spouse coverage under a reduced amount.  His pay records show he paid SBP premiums from 1985 to 2006 based on this reduced amount.  There is no evidence he ever questioned the coverage amount or premium during that 20-year period.

3.  He reentered active duty as a retiree recall on 27 August 2006 for a period of 3 years.  As he neared release from active duty, he executed another DD Form 2656 on 17 August 2009 in which he elected spouse coverage based on the full amount.  However, he did not have the option to execute a new election at the time as he was not being retired.  He was merely being returned to the Retired Reserve.  His previous 1985 election is irrevocable, except during certain Congressionally-mandated periods.

4.  Subsequent to his retirement in 1985, the law established an open season to from 1 March 1999 to 29 February 2000 and another open season from 1 October 2005 to 30 September 2006, thus allowing him an opportunity to enroll his spouse in the SBP at the full amount.  He did not do so.  He completed a DD Form 2656 on 17 August 2009; however, there was no open season in effect at the time he completed the DD Form 2656.

5.  Congress periodically establishes open seasons and the applicant should carefully review issues of Army Echoes, a bulletin provided to retirees several times a year (provided they keep their addresses up-to-date), for news of the next open season.  While the available evidence is insufficient for awarding the applicant relief at this time, this in no way affects his right to seek professional advice from a retirement services officer or any other SBP professional regarding the true nature of the cost associated with enrollment during a future open season, which includes monthly premiums starting on the date of enrollment and a substantial buy-in premium covering all the costs that would have been paid for the election if it had been made at the first opportunity to do so.

6.  The decision to enroll in or disenroll from the SBP and the amount of coverage is a personal decision made by the member and his/her family.  In this case, the applicant made the original election for a reduced amount and his spouse appears to have concurred with that decision.  Therefore, there is no error or injustice in his record.

7.  With respect to correcting his retiree account statement to show he has been contributing SBP premiums since 1985, the correction of this form is not within the purview of this Board.  The applicant is advised to contact DFAS officials regarding this form.

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)                                         AR20100008007



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)