IN THE CASE OF:	  

		BOARD DATE:	  18 December 2012

		DOCKET NUMBER:  AR20120009786 


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 his Survivor Benefit Plan (SBP) coverage.

2.  The applicant states his spouse declined the SBP; however, an allotment was started and money has been deducted on a monthly basis since retirement.  Prior to his retirement, he and his spouse agreed it would be better if they selected a commercial insurance policy rather than elect the SBP.  

3.  The applicant provides a statement from his spouse.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 25 February 1986.  He served through multiple reenlistments in a variety of assignments and he attained the rank/grade of master sergeant (MSG)/E-8.  

2.  He and his spouse, Vixxxxxx, were married on 7 February 1992.

3.  On 17 January 2008, in preparation for his upcoming retirement, he completed a DD Form 2656 (Data for Payment of Retired Personnel) wherein he indicated he was married to the applicant.  This form shows:

	a.  In Section IX (SBP Election), item 26 (Beneficiary Category), he placed an "X" in item 26g indicating he did have eligible dependents under the plan, but placed an "X" in item 26g indicating he elected not to participate in the SBP.  
	b.  In item 32 (Member), the statement reads "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."

	c.  In Section XII (SBP Spouse Concurrence) (Required when member is married and elects child(ren) only coverage, does not elect full spouse coverage, or declines coverage; the date of the spouse's signature in item 32.b MUST NOT be before the date of the member's signature in item 30.b, above; the spouse's signature MUST be notarized).  The applicant's spouse did not sign the form.

	d.  He and a Retirement Services Officer (RSO) signed this form on 17 January 2008.

4.  He retired on 30 April 2008 and he was placed on the Retired List in his retired rank/grade of MSG/E-8 on 1 May 2008.  

5.  There is no indication he submitted a request to the Defense Finance and Accounting Service (DFAS) within one year after the second anniversary of commencement of his retired pay to withdraw from the SBP.

6.  He provides a statement authored by his spouse on 10 May 2012.  She states that when the applicant was retiring, the two of them decided to waive the option of electing the SBP.  However, it appears they are still enrolled due to an invalid election.  She adds that the SBP coverage should be stopped immediately and all premiums paid should be refunded.  They have tried on several occasions to terminate this coverage to no avail.  Since it was not their fault, the Board should grant relief.

7.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election, once made, was irrevocable except in certain circumstances.  This law also provides that every member having a spouse and/or child(ren), who retired/transfers to the retired list on or after that date, is automatically covered under the SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list.

8.  Title 10 U.S. Code (USC), section 1448 requires notice to a spouse if a member elected not to participate in the SBP.  The statute also provided for automatic enrollment for spouse coverage at the full base amount unless a member affirmatively declined to participate in the SBP prior to receiving retired pay.  Title 10 USC, section 1448 was amended effective 1 March 1986 to require written concurrence by the spouse in a member's decision to decline the SBP or elect spouse coverage at less than the full base amount.  

9.  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 completed a DD Form 2656 in connection with his retirement in 2008.  He elected to decline enrollment in the SBP.  However, the law requires written concurrence by the spouse in a member's decision to decline the SBP or elect spouse coverage at less than the full base amount.  The DD Form 2656 informed him his spouse’s concurrence was required if he declined to participate, and she did not indicate her concurrence.  This made the election to decline the SBP an invalid election.  

2.  Also by law, when a member fails to make a valid election at retirement, the statute provides for automatic enrollment for spouse coverage at the full base amount.  Additionally, 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.  The DD Form 2656 also informed him of this deadline.  The spouse's concurrence is required.  No premiums will be refunded to those who opt to disenroll.  The applicant's withdrawal window opened in May 2010 and closed in May 2011.  

3.  There is no Government error and there is no injustice.  He is not entitled to relief either due to law or inequity. 

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)                                         AR20120009786



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ABCMR Record of Proceedings (cont)                                         AR20120009786



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