IN THE CASE OF:	  

		BOARD DATE:	  13 April 2011

		DOCKET NUMBER:  AR20100022184 


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 disenrolled from participation in the Survivor Benefit Plan (SBP).

2.  The applicant states that he had been denied disenrollment from the SBP by the Defense Finance and Accounting Service (DFAS).  He goes on to state that when he signed up for the SBP he was not aware that it would affect his quality of life during his retirement years.  He continues by stating that he currently resides in a skilled nursing facility and receives medical assistance.  Medical assistance requires residents in a nursing home to pay a monthly liability.  However, residents are allowed to keep $45.00 a month for personal spending. He is not able to keep $45.00 for himself; he ends up owing 75 cents a month that he cannot afford.  Accordingly, he desires to cancel his SBP so that he can keep his $45.00 per month that others in the nursing home are allowed.

3.  The applicant provides:

* A copy of his DD Form 2656-2 (SBP Termination Request)
* A copy of a letter from DFAS denying his request for SBP termination
* A copy of a letter from the Crawford County Human Services Department
* A letter from the applicant to the Department of Hearing and Appeals regarding his patient liability amount
* A copy of a Notification of Hearing Request
* A copy of a letter to his Congressional Representative
* Copies of three checks representing his income

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was born on 13 February 1924 and performed the majority of his service as an infantryman in the Wisconsin Army National Guard.  On 13 February 1984 he was placed on the Retired List to receive non-regular retired pay in the pay grade of E-7.  He had served 37 years and 7 days of service for pay purposes.  It cannot be determined when the applicant elected to participate in the SBP or the Reserve Component SBP (RCSBP).

3.  On 16 June 2010, DFAS responded to the applicant’s request for termination of his SBP and explained to the applicant that his only opportunity to withdraw from the SBP was during the 25th through 36th month after he began receiving Retired pay.  At the time the applicant was in his 315th month of retirement.

4.  The supporting documents submitted by the applicant show his spouse signed the DD Form 2656-2 concurring with the applicant’s election to withdraw from the SBP.  The supporting documents also show the applicant is currently paying $45.75 in SBP premiums. 

5.  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.  

6.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60, to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A)  elect to decline enrollment and choose at age 60 whether to start SBP participation; (B)  elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C)  elect that a beneficiary receive an annuity immediately upon their death if before 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.  Members retired for more than two years as of 17 May 1998 were authorized a one-year opportunity (17 May 1998 through 16 May 1999) to disenroll.  The spouse’s concurrence is required.  No premiums will be refunded to those who opt to disenroll.  Reservists who elected an option under the RCSBP continue to have the Reservist Portion cost deducted from their retired pay.

8.  Public Law 105-261, enacted 17 October 1998, established paid-up coverage under the SBP.  Effective 1 October 2008, no reduction may be made in the retired pay of a participant in the SBP for any month after the later of: (1) the 360th month for which the participant’s retired pay is reduced; or (2) the month during which the participant attains age 70.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant’s request and the reasons for his request are understood, an SBP election is an irrevocable decision.  However, provisions were made in the law to allow for that decision to be revoked during a 1-year period (for the applicant, 17 May 1998 through 16 May 1999). The applicant did not exercise his rights during that period. 

2.  Accordingly, there are no provisions under the law in which to revoke his participation in the SBP unless he can provide sufficient evidence to show he was enrolled in the SBP in error.

3.  Regrettably, therefore, absent such evidence there appears to be no basis to grant his request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ____X___  ____X___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States.  The applicant and all Americans should be justifiably proud of his service in arms.



      __________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)                                         AR20100022184



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ABCMR Record of Proceedings (cont)                                         AR20100022184



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