IN THE CASE OF:	  

		BOARD DATE:	  7 July 2011

		DOCKET NUMBER:  AR20100027069 


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 correction of his record to show that he declined participation in the Survivor Benefit Plan (SBP). 

2.  The applicant states that when he and his wife filled out the paperwork the first two times they declined SBP.  However, he was subsequently informed by the Defense Finance and Accounting Service (DFAS) that he had to take it and later found out that because of a minor mistake, DFAS decided to take the deductions out of his check.  He further states that he is sick and will not live long enough to make 360 payments and he was not informed of the 2-year limit to cancel SBP until he called DFAS on 13 October 2010.

3.  The applicant provides:

* a notarized statement from his spouse indicating that she previously declined SBP and she was still declining SBP
* a copy of his DFAS-CL 7220/148 (Retiree Account Statement), dated     11 August 2010
* a copy of a DD Form 2656 (Data for Payment of Retired Pay), dated       18 May 2005, showing that he declined SBP with spouse's concurrence

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 23 October 1946 and he was serving in the rank/grade of sergeant first class (SFC)/E-7 in the U.S. Army Reserve (USAR) when he received his memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter), dated 1 February 1995.  There is no evidence he made a Reserve Component SBP election at that time which resulted in delaying his SBP election until he turned age 60 and applied for retired pay.

3.  The applicant provided a DD Form 2656, dated 18 May 2005, showing he elected not to participate in the SBP.  His spouse signed the form on 18 May 2005.  The signatures were witnessed and notarized.

4.  On 23 October 2006, the applicant was placed on the Army of the United States (AUS) Retired List in the pay grade of E-7.

5.  In the processing of this case a staff member of the Board contacted officials at the DFAS regarding the applicant’s SBP election.  Officials at DFAS responded to the effect that the only DD Form 2656 available was one dated     20 February 2007, well after his 23 October 2006 retirement.  Officials at DFAS also stated that the applicant is receiving his Retired Pay from the Department of Veterans Affairs (DVA); therefore, he must remit his SBP premium payments himself.  His account is currently in arrears.

6.  On 10 October 2007, the applicant was granted 60 percent (%) Combat-Related Special Compensation (CRSC) and it was upgraded to 70% on 21 April 2008.

7.  A review of the DFAS-CL 7220/148 provided by the applicant shows he waived his Retired Pay because his DVA award ($2,919.00) is more than his Retired Pay and that he is required to remit $99.97 to DFAS for his SBP coverage.

8.  Title 10, U.S. Code, section 1448, provides, in pertinent part, 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.

9.  Public Law 105-85, enacted 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 spouse’s concurrence is required.  No premiums will be refunded to those who opt to disenroll.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant provided a copy of his May 2005 DD Form 2656 to show he declined SBP prior to his retirement, with his spouse's notarized concurrence.  He also provided a notarized statement from his spouse indicating that she previously declined SBP.

2.  Information received from DFAS officials indicates that DFAS did not receive the May 2005 DD Form 2556 prior to his retirement and because it were not received, the applicant was automatically enrolled in the SBP under full spouse coverage.

3.  Therefore, given his spouse's notarized statement, the applicant’s explanation of the events, and the copy of his DD Form 2656 dated 18 May 2005 declining SBP, it is reasonable to believe that the applicant never did want to enroll in the SBP and that he was unaware of his option to withdraw from the SBP during the period he was eligible.

4.  Therefore, given the facts and circumstances in this case, he should never have been enrolled in the SBP and, in the interest of equity, the records should be corrected to show that he declined SBP at the time of his retirement and that any debt incurred as a result of his erroneous enrollment be declared an invalid debt.

BOARD VOTE:

____X___  ___X____  ____X___  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing:

	a.  he elected to decline participation in the SBP with his spouse’s notarized concurrence effective prior to the date of his retirement;

	b.  his declination was timely received and processed by DFAS; and

	c.  any debt incurred as a result of his automatic enrollment in the SBP be declared an invalid debt.

2.  The Board wants the applicant and all others to know that the sacrifices he made in service to the United States are deeply appreciated.  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)                                         AR20100027069



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ABCMR Record of Proceedings (cont)                                         AR20100027069



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