IN THE CASE OF:
BOARD DATE: 12 January 2011
DOCKET NUMBER: AR20100012627
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, in effect, disenrollment from the Survivor Benefit Plan (SBP).
2. The applicant states that when he retired he and his spouse declined participation in the SBP.
3. The applicant provides a:
a. self-authored memorandum to the U.S. Army Human Resources Command, St. Louis, MO (HRC-STL), dated 5 May 2009;
b. self-authored memorandum to the Defense Finance and Accounting Service (DFAS), U.S. Military Retirement Pay, London, KY, dated 9 March 2009;
c. DD Form 2656 (Data for Payment of Retired Pay), dated 30 January 2009; and
d. U.S. Army Reserve Personnel Center, St. Louis memorandum, Subject: Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated
29 April 1993.
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 18 February 1949 and he was commissioned as a U.S. Army Reserve (USAR) Signal Corps second lieutenant on 5 June 1971. He continued to serve in the USAR and received his 20-year letter on 29 April 1993. He was promoted to the rank of colonel on 19 November 2002.
2. On 30 January 2009 the applicant completed his DD Form 2656 and in block 26g (Beneficiary Categories - I elect not to participate in SBP) he did not make an election to decline participation in the SBP. However, he indicated that he did have eligible dependents. His spouse signed the form on 1 February 2009.
3. The applicant retired on 1 March 2009 and he was enrolled in the SBP under spouse full coverage because his election was deemed invalid. On 9 March 2009, the applicant dispatched a note to DFAS advising them that he had forgotten to check block 26g of his DD Form 2656 and that his wife did not want to participate in the SBP.
4. On 5 May 2009 the applicant dispatched a letter to HRC-STL requesting that his wife be removed from his SBP. He again dispatched a letter to HRC-STL on 21 March 2010.
5. Information received from DFAS indicates that the applicants SBP election was deemed invalid.
6. 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.
7. 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.
8. 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. The evidence shows that at the time he submitted his DD Form 2656 he did not indicate in block 26g that he elected not to participate in the SBP. Consequently, he was automatically enrolled in SBP with full coverage in accordance with laws and regulations in effect at the time. Accordingly, there was no error or injustice in his case at the time of his retirement.
2. Therefore, since he has failed to show that he was misinformed of his options under the SBP and since he has the option of terminating his SBP participation beginning on the second anniversary of the date on which his retired pay started, provided his wife concurs, there appears to be no basis to grant his requested relief.
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) AR20100012627
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20100012627
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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