IN THE CASE OF:
BOARD DATE: 21 April 2011
DOCKET NUMBER: AR20100021138
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 termination of her participation in the Survivor Benefit Plan (SBP) and reimbursement of all premiums paid to date.
2. The applicant states that she and her husband were both counseled on the SBP and they both decided not to go forward with the plan. Her husband signed the form in front of a witness in May 2007 when processing her paperwork for retirement. She goes on to state that she has tried to remedy the problem and has been given the run-around trying to find her discharge files.
3. The applicant provides an un-notarized statement from her spouse that essentially states the same as her application to the Board; a copy of her Retiree Account Statement with a statement effective date of 29 January 2011; and a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty). The applicant subsequently provided a notarized statement from her husband, dated 29 March 2011, requesting discontinuance of their participation in the SBP.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 17 March 1988. She served as a health care specialist through a series of continuous reenlistments and she was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 July 2003.
2. The applicants records, though somewhat incomplete, show that her last duty assignment was in Europe (Belgium). On 31 March 2008, she was retired and she was transferred to the Retired List effective 1 April 2008. She had served 20 years and 14 days of total active service.
3. The Retiree Account Statement provided by the applicant shows she is paying full spouse coverage for SBP coverage in the amount of $102.49 per month.
4. In the processing of this case the Defense Finance and Accounting Service (DFAS) was contacted to determine what election the applicant made regarding enrollment in the SBP. Officials at DFAS indicate that SBP coverage was automatically initiated due to non-receipt of a DD Form 2656 (Data for Payment of Retired Pay), the form used to make an SBP election.
5. There is no indication in the available records that shows the applicant submitted a DD Form 2656-1 (SBP Termination Request) or that she has made any attempt to terminate participation in the SBP.
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 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 (DODFMR), 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 1-year period, beginning on the second anniversary of the date in 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. While the sincerity of the applicants claim that she declined SBP coverage is not in question, she has failed to show through the evidence submitted with her application and the evidence of record that such was the case.
2. Officials at DFAS indicate that no election was received and the applicant has not provided her copy of the DD Form 2656 she signed, which is customarily given to the individual Soldier.
3. Two 2 years after her retirement she petitions this Board for discontinuance of the SBP and reimbursement of all premiums paid; however, she provides little or no evidence to support her contentions and no evidence to show that she previously attempted to correct the supposed error.
4. Therefore, absent evidence to support her contention that she opted not to participate in the SBP and that she was unjustly enrolled, there appears to be no basis to grant her request to terminate her SBP participation and refund premiums already paid.
5. However, since the applicant has provided a notarized statement from her spouse within her 2-year anniversary of retirement, it would be appropriate to allow her to exercise her option to disenroll from the SBP without a refund of premiums already paid.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
____X___ ____X___ ____X___ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial 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 exercised her option under Public Law 105-85 to disenroll from the SBP on 29 March 2011 and her disenrollment was approved in a timely manner.
2. The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief. As a result, the Board recommends
denial of so much of the application that pertains to disenrollment from the SBP with a refund of all premiums paid to date.
____________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) AR20100021138
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20100021138
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