IN THE CASE OF:	  

		BOARD DATE:  19 July 2012

		DOCKET NUMBER:  AR20110025215 


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 disenrollment from the Survivor Benefit Plan (SBP)/Retired Serviceman’s Family Protection Plan (RSFPP).

2.  The applicant states, in effect, that while in the hospital at Walter Reed Army Medical Center (WRAMC) he was signed up for SBP/RSFPP and he does not remember doing so during his 9-month stay there.  He goes on to state he had a great deal of trouble performing day-to-day functions and he was on anti-depressants.  He believes it is unethical to present a life insurance contract to a severely wounded, heavily medicated, hospitalized veteran, especially one that cannot be cancelled.  He also states he never wanted the policy and he has not made a single payment towards the plan; however, when he started getting bills in the mail several years ago he called the Defense Finance and Accounting Service (DFAS) and he was told there was a specific time to cancel the SBP.  He sent paperwork in which they never received and he is now being told that it cannot be cancelled.

3.  The applicant provides a one-page letter explaining his application, a copy of his Leave and Earnings Statement (LES) effective 2 December 2011, and his marriage license. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error 


or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records, though somewhat incomplete, show that he enlisted in the Regular Army in Denver, CO on 17 September 2001 for training as an armor crewman.

3.  He completed his training and he was promoted to the rank/grade of sergeant (SGT)/E-5 on 1 February 2004.

4.  On 3 January 2005, while assigned to the Medical Holding Detachment at WRAMC, the applicant signed a DD Form 2656 (Data for Payment of Retired Personnel) wherein he elected to provide full spouse and children coverage under the SBP.  Just above his signature is the applicant’s acknowledgement that he had been counseled that he could terminate SBP participation, with his spouse’s concurrence, within 1 year after the second anniversary of commencement of retired pay.

5.  On 29 March 2005, the applicant was retired by reason of permanent disability with a 90 percent (%) disability rating.  He completed 3 years, 6 months, and 13 days of creditable active service.

6.  The LES provided by the applicant shows his monthly SBP cost for spouse and child is $91.46.

7.  During the processing of this case, DFAS confirmed that the applicant’s SBP election is active.

8.  SBP is a life insurance program that pays an annuity to eligible beneficiaries upon the death of covered former service members.  As a Federal Government insurance program, mainly subsidized by participant premiums, it is strictly governed by Federal statutes that set forth rules for its operation, including eligibility for enrollment, designation of beneficiaries, and authorized changes to beneficiaries.  Retirees do not earn SBP through their service – they earn the right to participate in SBP.  As with any private insurance endeavor, it is incumbent upon individuals to timely apply to participate.
9.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provides that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to eligible surviving family members.  An election, once made, is irrevocable except in certain circumstances.   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.

10.  Title 10, U.S. Code, section 1448 provides, in pertinent part, that effective
1 March 1986, a married member is enrolled in SBP with spouse coverage based on full retired pay at the time of retirement unless that spouse has concurred in writing to another election requested by the member pursuant to Department of Defense Financial Management Regulation, Volume 7B, Chapter 43.  When the spouse's concurrence is required, the signature indicating concurrence must be corroborated by one or more witnesses.  This chapter also states, in pertinent part, that the Secretary of the Military Department concerned (or designee) may correct any election or any change or revocation of an election when the Secretary considers it necessary to correct an administrative error.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be disenrolled from the SBP because he does not remember making an election to enroll has been noted and appears to lack merit.

2.  Official records contain a copy of his election at the time and the form is properly executed.  There is no evidence of record and he did not provide any evidence that shows he was misinformed of his options under the SBP.  There is 
also no evidence he attempted to terminate his SBP during the period 1 April 2007 through 31 March 2008.






BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X ___  ___X____  ___X  ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      __________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)                                         AR20110025215



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ABCMR Record of Proceedings (cont)                                         AR20110025215



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