IN THE CASE OF:	

		BOARD DATE:	  18 January 2012

		DOCKET NUMBER:  AR20110013326 


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 her Survivor Benefit Plan (SBP) coverage.  

2.  The applicant states she never filled out the paperwork and did not have to go through an SBP counselor nor was there any kind of check and balance on this type of error.  She indicates she sees this as an error on the part of Fort Carson, CO out-processing and she should not be penalized for their error.  She states retirees receive a briefing that includes SBP but it can take place up to
12 months prior to clearing.  The time allotted between the briefing and clearing is too long for a person to remember a requirement of this magnitude and that affects their pay.  She states it should be part of every clerk’s check-list and double checked by the Defense Finance and Accounting Service (DFAS) prior to retirement.  She is requesting the Board terminate her SBP coverage and reimbursement of money already paid in SBP premiums.

3.  The applicant provides the following documents in support of her application:

* DD Form 2656 (Data for Payment of Retired Personnel), dated
2 September 2011
* Retiree Account Statement (RAS)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)


CONSIDERATION OF EVIDENCE:

1.  The applicant served on active duty in an enlisted status from 3 April 1990 through 26 May 1999, at which time she was honorably discharged, in the rank of staff sergeant, in order to accept a commission as an officer.

2.  On 27 May 1999, the applicant was commissioned a second lieutenant and she remained on active duty in that status.  She was promoted to first lieutenant on 27 November 2001, to captain on 1 October 2002, and to major on
1 December 2008. 

3.  Orders 056-0003, issued by Headquarters, U.S. Army Garrison, Fort Carson, dated 25 February 2010, paragraph 1, assigned the applicant to the Fort Carson Transition Center, effective 31 December 2010.  It contained additional instructions that informed the applicant she was required to attend a retirement and SBP briefing and of the locations of these briefings which were held the 2nd and 3rd Wednesday of every month except for December.  Paragraph 2 authorized the applicant retirement from active duty on 31 December 2010 and placement on the Retired List on 1 January 2011.

4.  On 31 December 2010, the applicant was honorably retired after completing 20 years, 8 months, and 28 days of creditable active service.

5.  The applicant provides a Retirement Account Statement, dated 26 May 2011, which indicates the applicant has spouse and children SBP coverage.  She also provides a DD Form 2656 completed subsequent to her retirement on 3 February 2011.  In this document she elected not to participate in the SBP and her spouse concurred with this election.  The spouse concurrence was notarized by a notary from the State of Colorado.

6.   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.  An election, once made, was irrevocable except in certain circumstances.  An election to decline to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse (or child only coverage, if applicable) coverage)

7.  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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to terminate SBP coverage has been carefully considered.  However, by law, an election to decline to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full coverage.

2.  The evidence of record confirms the applicant was informed of the requirement to attend an SBP briefing in her retirement orders which were issued just over 10 months prior to her retirement.  These orders also informed her of the place and times these regularly scheduled monthly SBP briefings were conducted.  Further, the applicant does not deny attending a briefing but only argues they can be held so far in advance of retirement that a prospective retiree could forget the information received.

3.  Given the applicant was notified of the requirement to attend an SBP briefing in her retirement orders and she had the option to attend these briefings as many times as she wished prior to her retirement, her assertion that she should have been informed of the requirement during out-processing is not compelling.  SBP enrollment and coverage is well publicized and Soldiers are fully informed of the requirement to attend an SBP briefing when retirement is approved.  As a result, since it was the applicant’s failure to attend a briefing or to follow up on information she received if she did attend a briefing that resulted in automatic coverage, there is an insufficient evidentiary basis to support granting the applicant's requested relief.

4.  The applicant is advised she has the option to withdraw from the SBP in the 1-year period, beginning on the second anniversary of the date on which her retired pay started, with spousal concurrence.

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)                                         AR20110013326



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ABCMR Record of Proceedings (cont)                                         AR20110013326



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