IN THE CASE OF:
BOARD DATE: 22 September 2011
DOCKET NUMBER: AR20110003123
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 his military records be corrected by canceling his Survivor Benefit Plan (SBP) election for spouse and children coverage.
2. The applicant states:
* He wishes to be taken out of the SBP program
* He asked for this to be done in 2007
* He and his wife do not want the program
* He received misinformation about how the program works
3. The applicant provides a notarized statement, dated 7 February 2011, from his wife.
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. He was born on 14 January 1958. Having prior service in the Regular Army, U.S. Army Reserve, and Army National Guard, the applicant entered active duty on 16 November 2001 in an Active Guard Reserve status.
3. His DD Form 2656, dated 14 February 2006, shows he elected spouse and children coverage. This form shows he is married to "Laroona Larkins-Clark" and they married on 25 April 1998. Item 32 (Member) of this form states, in pertinent part, "Also, I have been counseled that I can terminate SBP participation, with my spouse's written concurrence, within one year after the second anniversary of commencement of retired pay. However, if I exercise my option to terminate the SBP, future participation is barred." It appears the correct given name of his spouse is "Laronna" not "Laroona."
4. His DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 15 February 2006, lists "Laroona Larkins-Clark" as his nearest relative.
5. On 15 February 2006, he was retired in the rank of staff sergeant and placed on the Temporary Disability Retired List the following day.
6. There is no evidence of record which shows he requested termination of his SBP coverage in 2007.
7. He provided a notarized statement, dated 7 February 2011, from his spouse concurring with his election to decline SBP. She also states "I was not married to William Clark in Feb. [February] 2006 when this election started."
8. 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.
9. Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse's written concurrence for a retiring member's election that provides less than the maximum spouse coverage.
10. 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. 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. Extensive publicity was given in Army Echoes, the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army.
DISCUSSION AND CONCLUSIONS:
1. His contentions he received misinformation about how the SBP program works and that he requested termination of his coverage in 2007 were noted. However, there is no evidence and he provided no evidence to support these contentions.
2. Although his spouse contends she was not married to the applicant in February 2006, his DD Form 2656 shows he was married to her at the time of his election on 14 February 2006 and that they were married on 25 April 1998.
3. His DD Form 2656 also shows he enrolled in the SBP for spouse and children coverage on 14 February 2006. Therefore, there is no basis for granting the applicants request.
4. The law provides that retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started (15 February 2008 for this applicant), to withdraw from the SBP.
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) AR20110003123
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ABCMR Record of Proceedings (cont) AR20110003123
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