IN THE CASE OF:
BOARD DATE: 22 February 2011
DOCKET NUMBER: AR20100019856
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 disenrollment from the Survivor Benefit Plan (SBP).
2. The applicant states that he has been trying since 4 January 2010 to terminate his enrollment in the SBP. He sent requests to the Defense Finance and Accounting Service (DFAS) on 4 January and 11 May 2010. Additionally, he requested assistance from his congressman. DFAS told him he cannot terminate his enrollment in the SBP. They suggested he petition the Army Board for Correction of Military Records (ABCMR). He contends he was never informed that the law provides a one-year period when he could have chosen to discontinue participation in the SBP.
3. The applicant provides, in support of his application:
* a statement co-signed by his spouse
* copies of his correspondence from his congressman and the response from DFAS
* copies of his requests sent to DFAS
CONSIDERATION OF EVIDENCE:
1. The applicant is a retired United State Army Reserve (USAR) colonel/O-6.
2. On 27 November 1981, letter from Office of the Adjutant General, USAR Components Personnel and Administration Center, notified the applicant of his
eligibility for retired pay at age 60. The letter states "UPON RECEIPT OF THIS LETTER OF NOTIFICATION OF ELIGIBILITY FOR RETIRED PAY AT AGE 60, YOU HAVE 90 DAYS IN WHICH TO ELECT TO PARTICIPATE IN THE SURVIVOR BENEFIT PLAN OR REMAIN UNCOVERED BY THE PLAN UNTIL YOU BECOME 60 YEARS OLD AND ARE AGAIN AFFORDED THE OPPORTUNITY."
3. On 23 February 1982, the applicant completed a DD Form 1883 (Survivor Benefit Plan Election Certificate). In Section II (Marital, Dependency, and Election Status) he indicated he was married and had dependent children. He elected for spouse only, full coverage to provide an immediate annuity to begin the day after his death whether before or after age 60. At the end of Section II the form contains the notice: "IMPORTANT: The decision you make with respect to this Survivor Benefit Plan is a permanent irrevocable decision. Please consider your decision and its effect very carefully." The applicant's signature and that of a witness are dated 23 February 1982.
4. 16 March 2000, Orders P-03-301974, Headquarters, USAR Personnel Command, announced the applicant was placed on the retired list, in the grade of Colonel, effective 21 June 2000.
5. Public Law 92-425, the Survivor Benefit Plan, 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.
6. Public Law 95-397, the Reserve Component SBP (RCSBP), enacted
30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 (and participate in SBP), to provide an annuity for their survivors should they die before reaching age 60. Once a member elects either Options B or C in any category of coverage, that election is irrevocable. Option B and C participants do not make a new SBP election at age 60. They cannot cancel SBP participation or change options they had in RCSBP - it automatically rolls into SBP coverage. If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60.
7. 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. No premiums will be refunded to those who opt to disenroll.
8. The applicant's records include a DD Form 2656 (Data for Payment of Retired Personnel) (BACK) Instructions. This form contains instructions that state "You may discontinue your SBP participation within one year after the second anniversary of the commencement of retired/retainer pay."
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his SBP enrollment should be discontinued because he was not informed that the law provides a one-year period when he could have chosen to discontinue participation in the SBP.
2. The evidence of record shows the applicant made his RCSBP election for spouse only, full coverage to provide an immediate annuity to begin the day after his death whether before or after age 60. Orders were issued announcing his placement on the retired list effective 21 June 2000 and monthly RCSBP and SBP premiums are being deducted from his military retired pay.
3. The applicant's records include a DD Form 2656. This form contains instructions that state "You may discontinue your SBP participation within one year after the second anniversary of the commencement of retired/retainer pay."
There is no available evidence showing he notified DFAS to terminate his SBP coverage during the period established by law and as his DD Form 2656 informed him. Therefore, the applicant is not entitled to termination of his SBP coverage.
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) AR20090011231
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ABCMR Record of Proceedings (cont) AR20100019856
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