BOARD DATE: 5 June 2012
DOCKET NUMBER: AR20110023280
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 removal from participation in the Survivor Benefit Plan (SBP).
2. The applicant states:
* he doesn't want SBP coverage
* he was drugged up and had a noncommissioned officer (NCO) telling him to sign "stuff"
* his wife was giving birth to his children and he did not know what was going on
3. The applicant provides:
* Defense Finance and Accounting Service (DFAS) letter, dated 23 September 2011
* DD Form 2656 (Data for Payment of Retired Personnel)
* Congressional response, dated 27 September 2011
* November 2011 SBP/Retired Serviceman's Family Protection Plan (RSFPP) premium bill
CONSIDERATION OF EVIDENCE:
1. After having prior service in the U.S. Marine Corps and Army National Guard, the applicant enlisted in the Regular Army on 13 March 2008. He completed training and was awarded military occupational specialty 14T (Patriot Launching Station Enhanced Operator/Maintainer). The highest rank/grade he attained while serving on active duty was sergeant/E-5.
2. On 18 February 2011, the applicant was honorably retired by reason of temporary disability. On 19 February 2011, the applicant's name was placed on the Temporary Disability Retired List. He completed 2 years, 11 months, and 18 days of active service and had 4 years, 3 months, and 24 days of prior active service.
3. The applicant's DD Form 2656 shows:
a. Item 25 (Dependent Children) lists the date of birth for his children as 20 December 2008 and 27 January 2011.
b. Section IX (SBP Election), item 25 (Beneficiary Category(ies)) is marked "b. I elect coverage for spouse and child(ren)."
c. Section IX, item 27 (Level of Coverage) is marked "a. I elect coverage based on full gross pay."
d. Section XI (Certification), item 30 (Member), states, in part, "Also, I have been counseled that I can terminate SBP participation, with my spouse's written concurrence, within 1 year after the second anniversary of commencement of retired pay. However, if I exercise my option to terminate the SBP, future participation is barred."
e. The applicant acknowledged these elections by affixing his signature in section XI and his signature was witnessed by the SBP counselor. Both signatures are dated 9 February 2011.
4. The applicant provides an SBP/RSFPP premium bill for November 2011 which shows:
* he owed $670.75 for the previous month (October 2011)
* he had a 6-percent interest charge of $3.27 for his remaining balance
* his current monthly charge was $89.65
* his total cost owed to DFAS for November 2011 was $763.67 and was due by 28 November 2011
5. The applicant also provides a copy of a letter from DFAS to his State Congressional representative, dated 23 November 2011, regarding his SBP election. DFAS advised the representative that the applicant was not eligible to terminate his SBP coverage at the time and may request to discontinue his SBP participation beginning the 25th month (March 2013) of his retirement or petition the Army Board for Correction of Military Records. His representative relayed the message from DFAS to the applicant in a letter, dated 27 September 2011.
6. 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. 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's request to discontinue participation in the SBP was carefully considered.
2. While the applicant states an NCO was telling him to sign "stuff," his wife was giving birth to their children, and he did not know what was going on, he has not submitted sufficient evidence to support his contentions.
3. His DD Form 2656 shows he acknowledged he had been counseled on termination of his SBP participation. Both his signature and the SBP counselor's signature show the form was signed well after the birth of his children.
4. The applicant has not exhausted his other administrative remedy to correct the alleged error by waiting until the 25th month (March 2013) of his retirement to cancel his participation in the SBP with his spouse's written concurrence. Further, the applicant failed to provide his wife's concurrence to cancel his participation in the SBP.
5. In view of the foregoing, there is no basis to grant the requested relief.
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) AR20110023280
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20110023280
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