BOARD DATE: 7 July 2011
DOCKET NUMBER: AR20100027486
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 the Survivor Benefit Plan (SBP) or correction to show he declined enrollment.
2. He states he was under the influence of prescription medication and had severe headaches at the time he enrolled in the SBP. He contends he was rushed to make decisions. He does not think he was fully capable of thinking clearly as he was under the influence of ibuprofen and loratadine for allergies. It was unfair to make him sign the election under these conditions.
3. He provided:
* a self-authored statement
* a DD Form 2656-2 (SBP Termination Request)
* a letter from the Defense Finance and Accounting Service (DFAS)
CONSIDERATION OF EVIDENCE:
1. His DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 16 June 2009 shows he was honorably retired and placed on the Temporary Disability Retired List (TDRL) in the grade of sergeant/E-5. He completed a total of 6 years, 7 months, and 12 days of active service and 4 years, 7 months, and 26 days of prior inactive service.
2. His DD Form 2656 (Data for Payment of Retired Personnel) is not available for review by the Board. However, on 17 November 2009, he and his spouse completed a DD Form 2656-2 requesting termination of his SBP. This form was witnessed and signed by a notary public on the same day.
3. A letter from the DFAS Retired and Annuity Pay office, dated 21 June 2010, shows he submitted a formal request to terminate his SBP. His request was disapproved and DFAS noted he had 1 year to withdraw from the SBP, starting with the 25th month through the 36th month after he was first eligible to receive retired pay. Since he had only been retired 11 months, he was not eligible to withdraw.
4. In his self-authored statement he contends his request for termination from the SBP is due to him having a family of four dependents and experiencing extreme financial hardship. He has not been able to make the premium payments for his SBP and his wife is unemployed.
5. Public Law 92-425, the SBP, 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 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 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.
DISCUSSION AND CONCLUSIONS:
1. The available evidence shows he requested the SBP be terminated, and his wife concurred on 17 November 2009, only 4 months after he was placed on the TDRL.
2. Based on his retirement date of 16 June 2009, he will reach his 2nd anniversary on 16 June 2011. Public law states retirees have a 1-year period, beginning on the second anniversary of the date on which their retired pay started to withdraw from their SBP and that no premiums will be refunded to those who opt to disenroll.
3. Therefore, it would be appropriate to show that he submitted his request to terminate his SBP effective 16 June 2011, that DFAS received his request in a timely manner and refund him any monies due as a result of this correction.
BOARD VOTE:
__x______ ___x_____ ____x____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
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 to show he submitted a DD Form 2656-2 to terminate his SBP coverage effective 16 June 2011, that DFAS processed his request in a timely manner to terminate his coverage effective 1 July 2011 and refund him any monies due as a result of this correction.
___________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) AR20100027486
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ABCMR Record of Proceedings (cont) AR20100027486
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