IN THE CASE OF:	  

		BOARD DATE:	  2 December 2010

		DOCKET NUMBER:  AR20100013220 


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, that his Survivor Benefit Plan (SBP) election be terminated and he be refunded all monies deducted from his retired pay since May 2007.  

2.  The applicant states he attempted to terminate his coverage several times beginning in 2007.  All attempts to obtain some type of written response from the Defense Finance and Accounting Service (DFAS) were unsuccessful up until February 2010, when he received a letter from DFAS. 

3.  He contends that in December 2009 he found copies of the letters from 2007, 2008, and 2009 and once again contacted DFAS, to no avail.  He did not use certified mail due to the absence of these instructions on his Retiree Account Statement.  The Retiree Account Statement simply stated to mail all requests to a Post Office (PO) Box in London, KY. 

4.  He states that although he admittedly did not follow the procedures required to terminate the SBP, he made several good faith attempts to contact DFAS.  He claims that in his many attempts to stop the SBP, he would phone DFAS and be placed on hold for up to 40 minutes and often times was transferred or completely disconnected.  He did not intend to remain in the SBP more than the initial two years and has become very frustrated with the actions of DFAS.

5.  The applicant provides the following documentation in support of his request:

* A notarized statement from his spouse, dated 7 April 2010
* A notarized letter requesting termination of the SBP signed by the applicant and his spouse, dated 7 April 2010
* A copy of a DD Form 2656 (Data for Payment of Retired Personnel), dated 3 December 2004
* Copies of five dated letters to DFAS
* Two facsimile (FAX) transmission pages
* A copy of a letter from DFAS, Retired and Annuity Pay, dated 19 February 2010
* A copy of a letter from the Department of the Army, Office of the Inspector General (DAIG), dated 2 March 2010
* A copy of his Retiree Account Statement
* A copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  On 28 February 2005, the applicant was retired, in the rank of lieutenant colonel, after completing a total of 21 years and 1 month of active military service.  

2.  On 3 December 2004, during his retirement processing, the applicant completed a DD Form 2656, in which he elected "Spouse Only" SBP coverage based on his full gross pay with no supplemental coverage.  Item 32 (Member) states, in pertinent part, "Also, I have been counseled that I can terminate SBP participation, with my spouse's written concurrence, within one year after the second anniversary of commencement of retired pay."  The applicant authenticated this document with his signature.  

3.  The applicant's wife provides a notarized statement in support of this application.  She states that she does not recall the specific dates in 2006 and early 2007, but she does recall discussing their joint decision to terminate enrollment from the SBP.  She claims to have a joint checking account with the applicant in which all their monies are automatically deposited.  They have not balanced the account in years, nor does the applicant receive a hard copy of his retiree account statement. 

4.  She states at the same time the applicant first requested termination from the SBP, her father’s health began to deteriorate.  She adds that her father was a retired staff sergeant who was highly decorated from his service during World War II, Korea, and Vietnam.  The death of her father was followed by the sudden illness and death of the applicant’s oldest brother.  She claims most of their time was focused on family matters and not on finances.  
5.  She asserts it was not until the winter of 2009 when she and the applicant found the previous requests made to DFAS to cancel the SBP.  At that time, he checked his Retiree Account Statement and discovered he was still paying for the SBP.   She contends the two of them agreed to keep the SBP for 2 years and then, if their jobs and life insurance plans allowed, the applicant would terminate the SBP coverage.  

6.  The applicant provides copies of the letters he allegedly mailed to DFAS.  These letters range in dates beginning with 6 May 2007 through 21 January 2010 and show his request to cancel his SBP effective 1 March 2007.  

7.  He provides copies of correspondence from DFAS and the DAIG.  These letters state his requests to stop his SBP are not on file with DFAS and in order to terminate his enrollment he would have to provide copies of the certified mail receipts as proof.  He was also informed he had a one-year window between the second and third anniversary in which he began to receive retired pay to cancel his SBP.  He was then advised to apply to the ABCMR.

8.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Elections are made by category, not by name, and are normally irrevocable except as provided by law.

9.  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 spouse’s concurrence is required.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his SBP enrollment should be terminated and he should be reimbursed all monies paid into the SBP after 1 May 2007.

2.  Item 32 of the DD Form 2656 gives explicit instructions which require the spouse's written concurrence to terminate SBP.  The evidence presented by the applicant shows he made several attempts to terminate his SBP, and his spouse has given her concurrence.  Therefore, there is sufficient evidence to grant the requested relief. 





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:

	a.  showing that he made a proper, written request to terminate his SBP coverage on 6 May 2007 and that it was received and processed by the appropriate office in a timely manner to be effective 1 June 2007 and

	b.  refunding all SBP premiums due him as a result of this correction.



      _____________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)                                         AR20100013220



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100013220



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1