BOARD DATE: 15 March 2012
DOCKET NUMBER: AR20110013810
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 withdrawal from the Survivor Benefit Plan (SBP).
2. The applicant states he declined SBP. He states he was misinformed in counseling.
3. The applicant provides a notarized statement signed by him and his wife on
2 June 2011.
CONSIDERATION OF EVIDENCE:
1. He enlisted in the U.S. Army Reserve on 15 April 1999. He was awarded the military occupational specialty 92S (Shower/Laundry and Clothing Repair Specialist).
2. He was ordered to active duty effective 7 November 2008 for mobilization for Operation Iraqi Freedom. He was retained on active duty effective 15 September 2009 for completion of medical care and treatment.
3. The Defense Finance and Accounting Service (DFAS) provided a DD Form 2656 (Data for Payment of Retired Personnel) signed by the applicant on 6 April 2011. Under SBP elections he elected spouse only coverage based on the full amount of his retired pay. Spouse concurrence was not required because he did not elect less than the maximum coverage.
4. He was retired on 5 May 2011 and placed on the Temporary Disability Retired List (TDRL) on 6 May 2011 with an 80 percent disability rating.
5. A notarized statement, dated 2 June 2011, was signed by the applicant and his wife. He was requesting to discontinue participation in the SBP. His wife certified she was the legal spouse and she understood the disadvantages and advantage of the decision.
6. Department of Defense Instruction (DODI) 1332.42 provides responsibilities and procedures for administering the Survivor Annuity Program, which is comprised of the SBP.
a. A member on the TDRL is eligible to elect coverage until the member is no longer eligible for disability retired pay.
b. A member entitled to retired pay based on active service who has a spouse or dependent child is considered a participant having maximum SBP coverage, unless the member, with spousal concurrence if married, elects less-than-maximum spouse coverage, child-only coverage, or not to participate in SBP.
c. Written spousal concurrence is required when the member elects to decline coverage or provide the spouse with less than the maximum SBP coverage available, to include electing child-only coverage.
d. All SBP elections must be in writing, signed, and properly witnessed if
required. All elections are irrevocable if not revoked before the date on which the person first becomes entitled to retired pay unless otherwise provided by law.
e. A member may elect to discontinue participation by submitting a DD Form 2656-2 (Survivor Benefit Plan (SBP) Termination Request) during the period that is more than 2 years, but less than 3 years, after the first date of entitlement to receive retired pay. The member must submit the request no earlier than the 1st day of the 25th month, and no later than the last day of the 36th month from the date of entitlement to retired pay, with spousal concurrence if applicable.
DISCUSSION AND CONCLUSIONS:
1. The DD Form 2656 provided by DFAS clearly shows the applicant elected SBP spouse only coverage based on the full amount of his retirement pay. Spouse concurrence was not required because he elected the maximum benefit. This election became irrevocable on 5 May 2011, the day he became entitled to retirement pay. He provides no evidence to show he was improperly counseled.
2. His request to discontinue SBP that was signed by his wife concurring with his request was not signed until 2 June 2011. This was after the date he became entitled to retirement pay. Therefore, his request was not valid.
3. In view of the above there is an insufficient basis to grant relief in this case.
4. He may elect to discontinue participation by submitting a DD Form 2656-2 during the period that is more than 2 years, but less than 3 years, after the first date of entitlement to receive retired pay. He must submit the request no earlier than the 1st day of the 25th month, and no later than the last day of the 36th month from the date of entitlement to retired pay, with spousal concurrence if applicable.
5. He is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately so as to be prepared to submit his request to DFAS when eligible. A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.
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) AR20110013810
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ABCMR Record of Proceedings (cont) AR20110013810
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