BOARD DATE: 12 January 2012
DOCKET NUMBER: AR20110010763
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 to be allowed to reenroll in the Survivor Benefit Plan (SBP).
2. The applicant states he was misinformed as to what he was requesting. He believed he was requesting that his participation be suspended, not terminated. Now that he has remarried he requests SBP reinstatement.
3. The applicant provides a Defense Finance and Accounting Service (DFAS) denial letter and an SBP election change certificate.
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, a retired sergeant first class, served on active duty in the Regular Army from 2 August 1976 through 31 January 1987.
3. At the time of his retirement he was married and elected to participate in SBP.
4. In January 1998, he divorced. He states that due to misguidance, he submitted a DD Form 2656-2 (SBP Termination Request) prepared by a Department of Veterans Affairs (VA) counselor to discontinue participation in SBP when his intent was to suspend coverage until he remarried. The cover sheet for the DD Form 2656-2 states that once a service member discontinued participation the service member was barred forever from the program.
5. Item 1 of section I (Instructions) of the DD Form 2566-2, 22 September 1998, states this form is used to voluntarily discontinue participation in SBP during the 25th through 35th month after commencement of payment of retired pay.
6. The applicant remarried in September 2010 and applied to change his coverage from suspended to spouse.
7. On 25 October 2010, DFAS notified him that his request to commence coverage for his new wife could not be honored due to his 22 September 1998 request to discontinue participation. He was advised that once he discontinued participation he could not restart the benefit.
8. 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. Members retired more than 2 years as of 17 May 1998 were authorized a 1-year opportunity (17 May 1998 through 16 May 1999) to disenroll.
The spouse's concurrence is required. No premiums will be refunded to those who opt to disenroll.
DISCUSSION AND CONCLUSIONS:
1. The applicant retired and commenced receipt of retired pay effective 1 February 1987. He divorced in January 1998 without a provision to continue coverage for his former spouse.
2. The applicant submitted his request to discontinue SBP during a limited period created specifically to allow for discontinuation of SBP. The cover sheet for the submission of this form specifically states that such an election results in a permanent bar to reenter the program.
3. The applicant's election to discontinue SBP coverage is irrevocable and he is barred from reentry in SBP. Therefore, no relief is warranted.
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 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) AR20110010763
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ABCMR Record of Proceedings (cont) AR20110010763
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