IN THE CASE OF:
BOARD DATE: 18 November 2010
DOCKET NUMBER: AR20100010150
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 that he be re-enrolled in the Survivor Benefit Plan (SBP) as a benefit for his wife.
2. The applicant states, in effect, that he initially declined participation in the SBP; however, because the witness did not date their signature, he was automatically enrolled in the SBP. He goes on to state that he contacted officials at the Defense Finance and Accounting Service (DFAS) and was told that nothing could be done and that he should contact his Retirement Services Officer (RSO). He continues by stating that his RSO convinced him to allow the SBP to remain in effect and so he (the applicant) changed his life insurance and other financial matters to coincide with his enrollment in the SBP. However, the following month he was informed by DFAS officials that they had decided to honor his declination of the SBP and he was no longer enrolled. When he informed them that he had adjusted his financial plans and wanted to remain in the SBP he was informed that he would have to wait until an Open Season occurred.
3. The applicant provides copies of his 22 January and 4 February 2010 Retirement Account Statement (RAS) and a copy of his DD Form 2656 (Data for Payment of Retired Personnel).
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 18 January 1950 and was serving as a United States Army Reserve (USAR) major when he received his Notification of Eligibility for Retired Pay at age 60 (20-year letter). He was transferred to the Retired Reserve on 23 October 1993.
2. On 2 April 2009, the applicant and his wife completed a DD Form 2656 indicating that they did not want to participate in the SBP. The election was witnessed; however, the witness did not date her signature. However, the form was also witnessed by a notary public on the same date.
3. The RASs provided by the applicant reflect that SBP costs of $138.84 were deducted from the applicants retired pay account. However, telephonic contact between DFAS and a staff member of the Board indicates that after receiving a call from the applicant, officials at DFAS made a determination to honor his SBP election and corrected his account to reflect no deductions for SBP. Officials at DFAS informed the staff member of the Board that subsequent statements have been sent to the applicant regarding the settlement of his account.
4. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.
5. Public Law 99-145, enacted on 8 November 1985, but effective 1 March 1986, required a spouses written concurrence for a retiring members election that provided less than maximum spouse coverage.
6. Title 10, U.S. Code, Section 1448 provides, in pertinent part, that effective 1 March 1986, a married member is enrolled with spouse coverage on full retired pay at the time of retirement unless that spouse has concurred in writing to another election requested by the member pursuant to Department of Defense Financial Management Regulation, Volume 7B, Chapter 43. When the spouses concurrence is required, the signature indicating concurrence must be corroborated by one or more witnesses.
7. 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 the SBP. The spouses concurrence is required. No premiums will be refunded to those who opt to disenroll.
DISCUSSION AND CONCLUSIONS:
1. Contact with DFAS officials confirms that a decision was made after receiving a call from the applicant and informing him that he was automatically enrolled in the SBP that his SBP election should be honored. However, it appears that the applicant accepted the original information from DFAS at the time and, according to him, adjusted his financial planning accordingly.
2. Therefore, it is reasonable to presume that the applicant relied, to his detriment, on the information that was provided to him at the time and is now in need of reinstatement to the SBP based on the original decision of DFAS to impose automatic enrollment in the SBP based on the failure to properly complete his SBP election.
3. Accordingly, the applicant should be re-instated back into the SBP effective the date of his original retirement.
BOARD VOTE:
___X____ __X____ ____X___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that the applicant was automatically enrolled in the SBP due to making an incomplete SBP election effective the date of his retirement.
_______ _ 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) AR20100010150
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20100010150
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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