IN THE CASE OF:	  

		BOARD DATE:	  23 June 2011

		DOCKET NUMBER:  AR20100028330 


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 his Survivor Benefit Plan (SBP) coverage.  

2.  The applicant states, in effect, that despite receiving an excellent retirement briefing, he failed to voluntarily terminate his SBP participation prior to the expiration of the provided timeframe.  He states that, based on the 360 month and age 70 requirements, he has 325 months remaining to meet the promulgated regulation, and 7 years to meet the age limit.  He asks the Board to consider this when rendering a decision.

3.  The applicant provides a letter to the Board from his spouse and his DD Form 2656 (Data for Payment of Retired Personnel).

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that after previous enlisted service in the Army of the United States, including service in Vietnam and the Tennessee Army National Guard (TNARNG), he was appointed as a Reserve commissioned officer of the Army, in the grade of second lieutenant, on 16 October 1979.  

2.  His record further shows he entered active duty on 14 July 1988, served in various stateside assignments, in command and staff positions, and attained the rank of colonel (COL).  He married his spouse on 2 July 1996.  

3.  On 6 September 1996, the Director of Personnel, Tennessee Army National Guard, issued him a Notification of Eligibility for Retired Pay at Age 60.  This letter, commonly referred to as a "20-year letter," notified him that he had completed the required years of service and would be eligible for retired pay upon application at age 60.

4.  The available record is void of any indication he completed a DD Form 1883 (Survivor Benefit Plan Election Certificate) within the prescribed timeframe following receipt of his 20-year letter.  

5.  On 30 August 2007, in preparation for his retirement, he executed a DD Form 2656 (Data for Payment of Retired Pay), wherein he elected SBP spouse coverage based on his full amount of gross retired pay.

6.  On 30 September 2007, he was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Retired Reserve).  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 21 years, 10 months, and 13 days of total active service.   

7.  Public Law 95-397, the Reserve Component SBP (RCSBP), enacted 30 September 1978, provides a way for those who had qualified for reserve retirement but were not yet age 60 [upon which they would be eligible to begin drawing retired pay, upon request, and to participate in the SBP], 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 (the member) dies before age 60 but delay payment of the annuity until the date the member would have reached age 60; or (C) elect that a beneficiary receive an annuity immediately upon their (the member's) death, if before age 60.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay (costs for option C being the more expensive).  Once a member elects either Options B or C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP – it automatically rolls into SBP coverage.  If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60.

8.  Public Law 92-425, the Survivor Benefit Plan (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.  The election must have been made prior to the effective date of retirement or else coverage automatically defaults to spouse coverage, if applicable.

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 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.  The effective date of termination is the first day of the first calendar month following the month in which the election is received by the Secretary concerned.  Reservists who elected an option under the RCSBP will continue to have the Reserve premium add-on deducted from their retired pay.

10.  Public Law 105-261, Section 641 of the National Defense Authorization Act for Fiscal Year 1999, enacted 17 October 1998, amended the SBP with regard to the deduction of SBP monthly premiums and established paid-up coverage under the SBP.  These changes allow qualified retirees to stop paying SBP and/or RSFPP premiums while maintaining their current annuity coverage. The change is commonly referred to as "Paid-up SBP." Beginning October 1, 2008, a member who is at least 70 years of age and has made a minimum of 360 months of premium payments is eligible to have their monthly premiums stopped. No action is required by the member to initiate the termination of premiums. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that in preparation for retirement, the applicant elected to participate in the SBP with full spouse coverage.  

2.  Retirees have a 1-year period, beginning on the second anniversary of the date on which their retired pay started to withdraw from SBP.  By law, no termination of SBP is authorized after the expiration of this timeframe.  There is no evidence he requested termination of his SBP coverage during this 1-year period, beginning on the second anniversary of the date on which his retired pay started. 
 
3.  The applicant appears to believe that he is not entitled to the benefits of SBP until he has completed paying the full premium, after 360 months.  The applicant is advised that SBP coverage is immediate upon retirement, regardless of the deceased Soldier's age at the time of death or the number of months he had paid into the program prior to his death.  However, he is required to pay premiums for a total of 360 months before the SBP deduction is terminated. 

4.  In view of the foregoing, there is no basis for granting relief in this case.
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)                                         AR20090012273



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ABCMR Record of Proceedings (cont)                                         AR20100028330



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