IN THE CASE OF:	  

		BOARD DATE:	  14 August 2012

		DOCKET NUMBER:  AR20110023648 


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:

	a.  His military records be corrected by canceling his Survivor Benefit Plan (SBP) election for spouse coverage.

	b.  Item 19a (Mailing Address After Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 
31 August 2011 be corrected to show an address in Oregon.  

2.  The applicant states:

	a.  On 2 March 2011, he and his wife elected not to participate in the SBP and he retired on 1 September 2011.

	b.  He has since spoken to an official at the Defense Finance and Accounting Service (DFAS) and more than $200.00 a month is being deducted from his pay for SBP.  He was told it was because of his April 1999 election when he retired.  Due to his disability rating from the Department of Veterans Affairs, in 1999, his counselor had him submit a request to terminate the SBP.

	c.  He was recalled to active duty on 17 April 2003 and ordered to active duty with a direct commission on 7 November 2005 which removed him from the recall program.  Due to this directive, on 7 November 2011, he was removed from the recall program and began his career in the Medical Service Corps as a second lieutenant and he took his Oath of Office on 10 November 2005.    
	d.  He completed his military career and retired from the 82nd Airborne Division Combat Aviation Brigade after completing all retirement requirements.  Now he is being told the official documentation he completed is no good and worthless.  He and his wife elected not to participate in the SBP; they have over $800,000.00 in life insurance.  This program is good for those who need it, but they do not need this program.    

   e.  He moved to Oregon after he signed his DD Form 214 and he never moved to Virginia.

3.  The applicant provides:

* DFAS email
* DD Forms 214 for the periods ending 31 August 2011, 9 November 2005, and 30 April 1999
* DD Form 2656 (Data for Payment of Retired Personnel)
* Retirement orders
* Service computation for retirement
* Service personnel records
* Letters, dated 29 September 2011 and 23 January 2012, from a Member of Congress

CONSIDERATION OF EVIDENCE:

1.  The applicant retired on 30 April 1999 (voluntary early retirement) in the rank of Chief Warrant Officer Two. 

2.  His DD Form 2656, dated 8 February 1999, shows he elected SBP for spouse and children coverage.

3.  On 8 October 1999, he submitted a DD Form 2656-2 (SBP Termination Request).  Section I (Instructions) states "Applicability.  This form is used to voluntarily discontinue participation in the SBP.  In accordance with Section 1448a of Title 10, U.S. Code, a participant in SBP may elect to discontinue participation during the 25th through the 36th month after commencement of payment of retired pay."  This form was invalid because he did not submit the form within the designated period. 

4.  On 17 April 2003, he was recalled to active duty from his warrant officer retired status and he entered active duty.  



5.  On 9 November 2005, the applicant was released from active duty by reason of Secretarial Authority.

6.  On 10 November 2005, the applicant took an oath of office as a second lieutenant, Medical Service Corps.

7.  A DD Form 214 shows that, on 31 August 2011, he retired due to sufficient service for retirement.

8.  Item 19a of his DD Form 214 shows an address in Virginia.

9.  The applicant provided a DD Form 2656, dated 2 March 2011, which shows he elected not to participate in the SBP.

10.  Public Law 92-425, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  

11.  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 provides less than the maximum spouse coverage.

12.  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 the 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.  Extensive publicity was given in Army Echoes, the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army.

13.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  The instructions for item 19a states this address will be provided by the Soldier.  The address in 19a must be a permanent address.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he elected not to participate in the SBP in March 2011 and he retired in September 2011 was noted.  However, evidence shows he retired in 1999.  Although his 31 August 2011 DD Form 214 indicates he retired due to sufficient service for retirement, he had never been discharged from his previous retired status.  He had merely changed his military personnel class from warrant officer to commissioned officer while he was in a retiree recall status, and he was returned to his retired status in 2011.  

2.  He enrolled in the SBP for spouse and children coverage in February 1999 prior to his early voluntary retirement in 1999.  Although he tried to terminate his SBP election in October 1999, this election was invalid because he did not request termination during the designated time period listed in Section I of his
DD Form 2656-2.  

3.  The law provides that retirees have a 1-year period beginning on the second anniversary of the date on which their retired pay started (1 May 2009 for this applicant) to withdraw from the SBP.  He did not do so.  Therefore, there is no basis for granting the applicant's request to terminate his SBP election.

4.  He also contends he moved to Oregon after he signed his DD Form 214 for the period ending 31 August 2011.  However, since the governing regulation states the Soldier will provide the address in item 19a, there is insufficient evidence on which to amend item 19a of his DD Form 214. 

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)                                         AR20110023648



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110023648



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1