BOARD DATE: 27 November 2012
DOCKET NUMBER: AR20120015698
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 and reimbursement of all paid premiums.
2. The applicant states:
* He was separated in Germany; during outprocessing, his spouse had already relocated to Fayetteville, GA, and she was not briefed on the SBP
* He was told if he elected spouse coverage his wife would not need to send a notarized letter of understanding to the Vilseck Transition Center
* He was also told he could later reduce the amount or terminate coverage if he wanted to
* He was never told this could only be done after 2 years of his retirement
* He contacted several people in an effort to resolve this issue with no luck
* He and his spouse currently have other types of insurance
* They feel they have been misled and it appears unfair to force him into paying for something they do not want
3. The applicant provides a signed/notarized self-authored letter and a signed/notarized letter from his spouse.
CONSIDERATION OF EVIDENCE:
1. The applicant's records show he enlisted in the Regular Army on 30 May 1990 and he held an armor specialty. He served through multiple reenlistments in a variety of stateside or overseas assignments, and he attained the rank/grade of sergeant major (SGM)/E-9.
2. He and his spouse, Nicole, were married on 3 October 1997.
3. On 21 February 2012, in preparation for his retirement, he completed a DD Form 2656 (Data for Payment of Retired Pay), wherein he indicated he was married to Nicole and they had two dependent children. He elected SBP spouse coverage based on his full amount of gross retired pay. Additionally, although this form was prepared in the presence of a Retirement Service Officer (RSO) in Vilseck, Germany, his spouse's address is indicated as "Fayetteville, GA."
4. Since he did not elect child(ren) only coverage, coverage based on a reduced amount, or declined coverage, his spouse's concurrence with his election was not required.
5. Item 32 of the DD Form 2656 states, "Also, I have been counseled that I can terminate SBP participation, with my spouses 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."
6. He was honorably retired on 31 July 2012 and was placed on the retired list in his retired rank/grade of SGM/E-9 on 1 August 2012. He was credited with completing more than 22 years of faithful honorable active service.
7. He submitted two letters as follows:
a. A signed/notarized self-authored letter requesting immediate termination of his SBP coverage. He restated the same contention previously stated on his application.
b. A signed/notarized statement from his spouse, Nicole, wherein she states she concurs with the termination of SBP coverage. She adds that she was not briefed on this program and that they currently have sufficient commercial or government insurance that would provide for their family. She believes they have been misled and indicates she understands by terminating coverage from this plan, they cannot reenter it.
8. 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 be made prior to the effective date of retirement or else coverage automatically defaults to spouse coverage, if applicable. Elections are made by category, not by name.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows, prior to his retirement, the applicant made a spouse SBP election. Since he did not decline coverage, or elect children only coverage, or coverage based on a reduced amount, his spouse's concurrence was not required.
2. His election, in the presence of a Retirement Service Officer, clearly shows he was counseled that he could terminate participation, with his spouse's written concurrence, within one year after the second anniversary of commencement of his retired pay.
3. However, although the decision to enroll in or disenroll from the SBP is a personal decision, and although there is no evidence the applicant and his spouse were misled into signing up for this program, it appears if the applicant and his family were fully briefed together, they may have opted not to participate in the SBP.
4. Given the short period between the applicant's retirement date and the date he applied for termination of his SBP participation, it appears he never intended to enroll in the SBP and his spouse concurred with his decision. Therefore, although there is no statutory or regulatory error in this case, as a matter of equity only, his records should be corrected to show he elected not to participate in the SBP and his spouse concurred with his decision.
BOARD VOTE:
_x____ __x______ ___x_____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
* showing the applicant accurately completed the DD Form 2656 on 21 February 2012, electing not to participate in the SBP, and that his spouse properly concurred with his decision on the same date
* showing the Defense Finance and Accounting Service received and processed the DD Form 2656 in a timely manner, with the spouse's concurrence with the applicant's declination of the SBP
* reimbursing any premiums already paid by the applicant as a result of this correction
_______ _ 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) AR20120015698
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ABCMR Record of Proceedings (cont) AR20120015698
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