IN THE CASE OF:	  

		BOARD DATE:	  28 August 2012

		DOCKET NUMBER:  AR20120004305 


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 reconsideration of his earlier request for termination of his Survivor Benefit Plan (SBP) coverage.

2.  The applicant states:

* He was erroneously informed by a Defense Finance and Accounting Service (DFAS) official that he had exceeded the 24-month window
* Based on this, the only recourse available to him was applying to this Board which he did in September 2010
* Although the retirement briefing was excellent, he was never informed about a required time to withdraw from the program
* Since his retirement occurred on 30 September 2010 which was within the 3-year window, he should have been allowed to withdraw

3.  The applicant provides a statement from his spouse.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100028330 on 23 June 2011.

2.  The applicant submitted a new argument as well as a signed (but not notarized) statement from his spouse.  They are considered new evidence that warrant consideration by the Board.

3.  The applicant was born on 21 September 1947.  Having had prior enlisted service, he was appointed as a Reserve commissioned officer of the Army, in the Tennessee Army National Guard (TNARNG), and executed an oath of office on 16 October 1979.

4.  He entered active duty on 14 July 1988, served in various stateside assignments, in command and staff positions, and attained the rank of colonel (COL).  While on active duty, he married his spouse on 2 July 1996.  

5.  On 6 September 1996, the TNARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified him that he had completed the required years of service and would be eligible for retired pay upon application at age 60.

6.  There is no indication in his record that shows he completed a DD Form 1883 (Survivor Benefit Plan Election Certificate) within the prescribed timeframe following receipt of his 20-year letter.  

7.  On 30 August 2007, in preparation for his retirement, he completed a DD Form 2656 (Data for Payment of Retired Pay), wherein he indicated he was married but had no dependent children.  He elected SBP spouse coverage based on his full amount of gross retired pay.  Item 32 of the DD Form 2656 states, “Also, I have been counseled that I can terminate SBP participation, with my spouse’s written concurrence, within one year after the second anniversary of commencement of retired pay.   However, if I exercise my option to terminate the SBP, future participation is barred.”

8.  He was honorably retired on 30 September 2007 and he was placed on the retired list in his retired grade of COL on 1 October 2007.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 21 years, 10 months, and 13 days of total active service.   

9.  He applied to the Board to terminate his SBP coverage.  His application was dated 17 November 2010.  On 23 June 2011 the Board denied his request.

10.  Public Law 92-425, the SBP, 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.  The election must have been made prior to the effective date of retirement or else coverage automatically defaults to spouse coverage, if applicable.

11.  Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60.  Elections are made by category, not by name.  Three options were available:  

* Option A - elect to decline enrollment and choose at age 60 whether to start SBP participation
* Option B - 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
* Option C - elect that a beneficiary receive an annuity immediately upon their death if before age 60

Once a member elects either option B or option C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in the Reserve Component (RCSBP) - the options automatically roll into SBP coverage.  

12.  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.  Reservists who elected an option under the RCSBP will continue to have the Reserve premium add-on deducted from their retired pay.

13.  Public Law 105-261, Section 641 of the National Defense Authorization Act for Fiscal Year 1999, enacted 17 October 1998, amended the SBP with regard to the deduction of SBP monthly premiums and established paid-up coverage under the SBP.  These changes allow qualified retirees to stop paying SBP and/or RSFPP premiums while maintaining their current annuity coverage. The change is commonly referred to as "Paid-up SBP."  Beginning 1 October 2008, a 

member who is at least 70 years of age and has made a minimum of 360 months of premium payments is eligible to have their monthly premiums stopped.  No action is required by the member to initiate the termination of premiums. 

DISCUSSION AND CONCLUSIONS:

1.  The decision to enroll in or disenroll from the SBP is a personal decision made by the member and his/her family.  In this case, the evidence of record shows in connection with his retirement, the applicant executed a DD Form 2656 on 30 August 2007, electing "spouse" SBP coverage based on the full amount.  

2.  Retirees have a 1-year period, beginning on the second anniversary of the date on which their retired pay started to withdraw from SBP.  Item 32 of his DD Form 2656 informed him of that timeframe.  By law, no termination of SBP is authorized after the expiration of this timeframe.

3.  The applicant retired on 30 September 2007.  He was eligible to request termination of his SBP coverage as early as 1 October 2009, but not later than 30 September 2010.  There is no independent evidence he requested termination of his SBP coverage during this 1-year period, beginning on the second anniversary of the date on which his retired pay started or sought advice from DFAS regarding the matter during that time frame.  Further, his earlier application to the Board was dated 17 November 2010, also well outside the termination window. 

4.  In view of the foregoing, there is an insufficient basis for granting relief in this case.

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 to amend the decision of the ABCMR set forth in Docket Number AR20100028330 dated 23 June 2011.



      _______ _   __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)                                         AR20120004305





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ABCMR Record of Proceedings (cont)                                         AR20120004305



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