BOARD DATE: 13 August 2013
DOCKET NUMBER: AR20120018149
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 immediate cancellation of his Survivor Benefit Plan (SBP) premiums and a full refund of monies deducted from his pay.
2. The applicant states:
* the deduction is an error he has been trying to correct for 13 months and counting
* he did not elect spouse coverage under the SBP
* the deduction began on 1 August 2011 continues through the present
3. The applicant provides:
* DD Form 2656 (Data for Payment of Retired Personnel)
* undated, self-authored letter
* Retiree Account Statements, dated 1 November 2011 and 31 August 2012
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 5 July 1989.
2. A review of the interactive Personnel Electronic Records Management System (iPERMS) failed to reveal the applicant's DD Form 2656 contained therein.
3. The DD Form 2656 provided by the applicant indicates he elected SBP coverage for children only based on his full gross pay. He signed the form on 15 March 2011. The DD Form 2656 shows he marked the block indicating he has a spouse. This form shows his spouse concurred with his election for children only coverage. However, her concurrence was not made until 2 August 2012, more than a year after his retirement. It was notarized the same day.
4. He retired from the Army on 31 July 2011 after completing 22 years and 26 days of net active service.
5. The applicant submits copies of his Retiree Account Statements, dated 1 November 2011 and 31 August 2012, showing SBP premiums have been deducted from his retired pay for spouse-only coverage.
6. Public Law 92-425, the SBP, enacted 21 September 1972, 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. However, surviving children are only entitled to SBP payments until reaching age 22 in certain cases.
Changes in SBP options are not authorized except in specific instances or as authorized by law.
7. 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 provided less than maximum spouse coverage.
8. An election to decline to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse-only or child(ren)-only coverage.
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 disenroll from SBP. Requests must provide spouse/former spouse's written concurrence and release of requirement to provide former spouse SBP, if appropriate.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions have been noted and his supporting evidence has been considered.
2. His DD Form 2656 is not filed in iPERMS. The available evidence suggests the applicant initially made an SBP election for children-only coverage on 15 March 2011 without his spouse's written concurrence. Due to his failure to obtain spousal concurrence until 2 August 2012, his SBP election automatically defaulted to full spouse-only coverage.
3. There is no error in the actions taken by the Army in the applicant's case and he is not entitled to a refund of the SBP premiums he has paid. Retirees have a 1-year period beginning on the second anniversary of the date on which their retired pay started to withdraw from the SBP. Accordingly, if the applicant so chooses, he may submit a request to the Defense Finance and Accounting Service to withdraw from the SBP anytime between 1 August 2013 and 31 July 2014 with his spouse's written concurrence.
4. In view of the foregoing, the applicant's request should be denied.
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 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) AR20120018149
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20120018149
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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