IN THE CASE OF:	  

		BOARD DATE:	  10 May 2012

		DOCKET NUMBER:  AR20110018474 


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 participation in the Survivor Benefit Plan (SBP).

2.  The applicant states:

	a.  she declined SBP coverage when she completed a DD Form 2656 (Data for Payment of Retired Personnel) on 10 June 2010;

	b.  upon receiving her retirement pay a few months ago, she realized the Defense Finance and Accounting Service (DFAS) deducted $102.00 for SBP cost;

	c.  the DFAS provided that her record showed she completed an election of coverage for her husband in 1991;

	d.  she divorced her husband Mr. K______ B______ in 1993 and remarried her current husband in 1997;

	e.  on her 59th birthday, the U.S. Army Reserve Personnel Center forwarded her forms to complete in preparation of her receipt of retired pay at age 60, at which time she declined SBP coverage and her spouse agreed with this decision; and

	f.  based on the ABCMR's current backlog, if her case is given favorable consideration, she requests reimbursement of the SBP premiums made for each month taken to complete her case.

3.  The applicant provides:

* Self-authored statements dated 11 and 26 September 2011
* DD Form 1883 (Survivor Benefit Plan Election Certificate)
* Memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60 (commonly known as the 20-year letter)
* Divorce Decree
* Assignment order
* Certificate of Marriage
* DD Form 2656 (Data for Payment of Retired Personnel), dated 30 June 2010 and 5 August 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 13 June 1951.

2.  Her military record shows that after having prior service in the U.S. Air Force, she enlisted in the U.S. Army Reserve (USAR) on 1 July 1973.

3.  On 16 July 1987, the applicant married.

4.  On 2 March 1991, the U.S. Army Reserve Personnel Center issued the applicant a 20-year letter and a DD Form 1883 attachment which identified the details regarding all RCSBP options.  It shows she was informed, by law, of her entitlement to participate in the Reserve Component SBP (RCSBP) within
90 days or decline SBP coverage until she applied for retired pay at age 60.

5.  On 9 May 1991, the applicant completed the DD Form 1883 that shows she elected to participate in the RCSBP for spouse only coverage at the full rate under Option C indicating immediate coverage after her death regardless of her age.

6.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows she was discharged from the U.S. Army Reserve (USAR) on 26 October 1992.  It also shows she was appointed a Reserve Warrant Officer in the rank/grade of chief warrant officer 2 (CW2)/W-2 on 27 October 1992.

7.  On 16 February 1993, the Fourteenth Judicial Circuit, Bay County, FL, issued the applicant and her spouse a Final Judgment Dissolving Marriage Under Simplified Dissolution Procedure.  There is no evidence that this document was ever forwarded to the DFAS.

8.  On 7 December 1995, the applicant was issued official orders assigning her to the Retired Reserve with an effective date of 16 September 1995.

9.  On 15 November 1997, the applicant remarried.

10.  On 30 June 2010 and again on 5 August 2011, the applicant and her current spouse completed a DD Form 2656.  Both documents show the applicant elected not to participate in the SBP and her spouse concurred with this decision.

11.  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.  
Three options are available:

	a.  Option A (Defer) - elect to decline enrollment and choose at age 60 whether to start SBP participation;

	b.  Option B (Age 60) - elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member's 60th birthday; and

	c.  Option C (Immediate Coverage) - elect that a beneficiary receive an annuity immediately upon their death if before age 60.

12.  Soldiers with RCSBP coverage in place do not make a new election upon reaching age 60.  RCSBP coverage rolls into SBP.  If spouse coverage is elected and the spouse is lost through death or divorce, the cost of SBP coverage is suspended.  If the member remarries and has not converted to former spouse coverage, three options are available.  The member must notify the finance center of the desired option within 1 year of the new marriage.  If the member fails to notify the finance center, option one below will automatically take effect on the first anniversary of the remarriage and the member will be responsible for premium costs beginning the first day of the 13th month.  The three options are:

* Resume the original level of spouse coverage.
* Elect not to resume spouse SBP coverage, in which case the spouse will be notified and the election cannot be changed.
* 
Elect to cover an increased portion of retired pay.

13.  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.  The applicant contends her participation in the SBP should be terminated because she divorced her first husband in 1993, and although she remarried in 1997, she declined SBP coverage when she applied for retired pay in June 2010, with her spouse's concurrence.

2.  By law and regulation, Soldiers who complete 20 or more years of qualifying service are issued a 20-year letter that informs them of their retirement eligibility and they are offered the opportunity to enroll in the RCSBP.  The evidence of record confirms the applicant was issued her 20-year letter which included a DD Form 1883 that identified the details regarding all RCSBP options.

3.  In addition, the 20-year letter confirms the applicant was given 90 days to make her election.  On 9 May 1991, after receiving the details regarding each of the RCSBP options, the applicant elected spouse only RCSBP coverage based on the full amount under Option C, on 9 May 1991.  

4.  The Final Judgment of Divorce confirms the applicant's 16 July 1987 marriage was dissolved on 16 February 1993.  Based on the applicant's divorce, the SBP coverage in effect at that time would have been suspended until she remarried.  The applicant retired from the USAR on 16 September 1995, remarried on 15 November 1997 at which time her SBP "spouse only" coverage resumed.  Absent her declination of coverage for her new spouse within 1 year of her remarriage, and upon turning age 60 on 13 June 2011, her RCSBP spouse coverage rolled into SBP spouse coverage.

5.  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 and no premiums are refunded to those who opt to disenroll.  The applicant will reach the second year anniversary from the official start date of her retired pay on 13 June 2013.  As a result, she is not within her window of eligibility to withdraw from the SBP.  Accordingly, there is no basis upon which to grant the requested relief in this case.

6.  The applicant is advised that she may apply directly to DFAS when she comes within her window of eligibility to withdraw from the SBP by completing a
DD Form 2656-6 (SBP Election Change Certificate) and mailing it to the Defense Finance and Accounting Service, U.S. Military Retired Pay, P.O. Box 7130, London, KY 40742-7130 or faxing it to 1-800-469-6559.

7.  For further information the applicant can contact DFAS Customer Service at
1-800-321-1080

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)                                         AR20110018474



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ABCMR Record of Proceedings (cont)                                         AR20110018474



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