IN THE CASE OF:	  

		BOARD DATE:	  9 February 2012

		DOCKET NUMBER:  AR20110012688 


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 participation in the Survivor Benefit Plan (SBP).

2.  The applicant states he and his wife did not elect to participate in the SBP at the time of his retirement on 31 December 2010.

3.  The applicant provides:

* DD Form 2656-2 (SBP Termination Request)
* DD Form 1883 (SBP Election Certificate)

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 22 August 1948.

2.  He was appointed as a Reserve commissioned officer in the South Carolina Army National Guard (SCARNG) in the rank of second lieutenant and he executed an oath of office on 28 June 1974.  He continued to serve in various assignments and positions in area of concentration 11A (Infantry).

3.  On 10 January 1989, the Commonwealth of Virginia, Department of Military Affairs, Richmond, VA issued the applicant a Notification of Eligibility for Retired 

Pay at Age 60 (20-year letter).  This letter notified the applicant that he completed the required years of service and he would be eligible for retired pay upon application at age 60.

4.  On 26 May 1990, the applicant and his wife were married.

5.  On 13 July 1991, the applicant completed a DD Form 1883 which shows he elected to participate in the Reserve Component SBP (RCSBP) for spouse only coverage at the full rate under option C indicating immediate coverage after his death regardless of his age.

6.  Orders 089-131, issued by the Office of the Adjutant General of Virginia, Virginia National Guard, Richmond, dated 8 May 1996, separated the applicant from the ARNG and transferred him to the Retired Reserve effective 30 April 1996.

7.  Orders P06-808618, issued by the U.S. Army Human Resources Command (USAHRC), St. Louis, MO, dated 18 June 2008, placed the applicant on the Retired List in the rank/grade of lieutenant colonel (LTC)/O-5 on 22 August 2008, his 60th birthday.  Based on his recall to active duty, this order was revoked in USAHRC Orders P-06-808618R, dated 1 July 2008.

8.  On 11 November 2007 and 3 February 2009, the applicant twice voluntarily initiated a request for recall to active duty.  Although his record does not include the response to his requests, it does include the recall to active duty orders and the corresponding DD Forms 214 (Certificate of Release or Discharge from Active Duty) documenting two additional periods of active duty service from
23 March 2008 - 26 April 2009 and from 23 May 2009 - 31 December 2010.

9.  Orders P-01-940463, issued by USAHRC, St. Louis, dated 24 January 2011, placed the applicant on the Retired List in the rank/grade of LTC/O-5 on
1 January 2011.

10.  On 30 January 2012, USAHRC informed the Defense Finance and Accounting Service (DFAS) that the applicant received his 20-year letter in 1989, while unmarried.  He married in May 1990; however, he elected RCSBP in 1991, after the 1 year window.  Therefore, he made an invalid RCSBP election, and as a result RCSBP premiums will be discontinued and previous deductions reimbursed.

11.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. Elections must be made prior to the effective date of retirement.  An election, once made, was irrevocable except in certain circumstances.  

12.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for Reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  

13.  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 provided less than maximum spouse coverage.  

14.  Title 10 of the U.S. Code, Section 1448(a)(5) provides that a person who is not married or has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP.  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date on which that person marries or acquires that dependent child.

15.  Public Law 105-85, enacted on 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.

DISCUSSION AND CONCLUSIONS:

1.  Soldiers who complete 20 or more years of qualifying service are issued a  20-year letter and are offered the opportunity to enroll in the RCSBP.  If not married upon receipt of the 20-year letter, but later marries, the Soldier can elect to participate in the program; however, the election must be made within one year from the date of marriage.  The evidence of record confirms, after receiving his 20 year letter, the applicant was married on 26 May 1990 but elected to participate in the RCSBP on 13 July 1991.  As a result, his election was made more than one year after his marriage, making it an invalid election.

2.  USAHRC contacted DFAS to initiate action to discontinue the applicant's participation in the RCSBP and refund him any RCSBP premiums due him.

3.  In regard to the standard SBP, the applicant stated he and his wife did not elect to participate in the SBP at the time of his retirement (effective 1 January 2011).  However, he did not contend or provide evidence to show he and his spouse took action to elect NOT to participate in the SBP prior to 1 January 2011.  Therefore, since it appears no valid election to not participate in the SBP was prior to his placement on the retired list on 1 January 2011, an automatic default SBP election for spouse coverage at the full base amount was initiated by DFAS at that time.

4.  By law, 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 applicant was retired 1 January 2011 and he will reach the second year anniversary from the official start date of his retired pay on 1 January 2013.  Accordingly, his window of opportunity to request termination of SBP coverage will become effective and remain open from 1 January 2013 through 1 January 2014.  

5.  Therefore, there is no basis upon which to grant the requested relief at this time.  However, the applicant is informed that he may apply to DFAS for termination of SBP coverage on 1 January 2013.

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)                                         AR20110012688



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ABCMR Record of Proceedings (cont)                                         AR20110012688



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