IN THE CASE OF:
BOARD DATE: 5 July 2011
DOCKET NUMBER: AR20100023594
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, his Survivor Benefit Plan (SBP) coverage be terminated.
2. He states he was coerced into electing SBP and he was not interested in the program.
3. He does not provide any additional evidence.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant's records show he retired from the Regular Army on 30 November 1978 in the rank of staff sergeant.
3. A DA Form 4240 (Data for Payment of Retired Army Personnel), dated
1 November 1978, shows he elected full SBP coverage for spouse and dependent children.
4. Information provided by the Defense Finance and Accounting Service (DFAS) verified that the applicant had been in a non-pay status for some time and had only made one SBP payment in May 2006.
5. Public Law 92-425, the SBP, enacted on 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. An election to decline to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse (or child only coverage, if applicable) coverage.
6. 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 spouses concurrence is required. No premiums will be refunded to those who opt to disenroll. This information was highly publicized in Army Echoes, an Army bulletin published and provided to retirees on a regular basis.
7. 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 participants retired pay is reduced; or (2) the month during which the participant attains age 70.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows he completed a DA Form 4240 on 1 November 1978 and elected full coverage for spouse and dependent children. The fact that he now argues that he was coerced into electing SBP is not sufficient justification to terminate his SBP coverage.
2. Evidence of record also shows he could have disenrolled from the SBP during the period May 1998 through May 1999. There is no evidence and he has not provided any to show he attempted to terminate his SBP coverage during this period.
3. In view of the foregoing, there is no basis for granting his request.
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) AR20100023594
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