BOARD DATE: 14 January 2014
DOCKET NUMBER: AR20130008355
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 her participation in the Survivor Benefit Plan (SBP).
2. The applicant states she elected not to participate in the SBP, she did not check the box left to line 26g (Beneficiary Category(ies), I Elect Not to Participate in SBP), and her spouse concurred with her decision.
3. The applicant provides copies of her DD Form 2656 (Data for Retired Payment of Retired Personnel), her leave and earnings statement, Direct Deposit Form, marriage license, divorce decree, and Chronological Statement of Retirement Points.
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. On 22 March 2012 while serving in the U.S. Army Reserve in pay grade E-7, the applicant signed a DD Form 2656. In item 26g she indicated she had eligible dependents under the SBP, but she did not place an X in the far left block. In item 27a (Level of Coverage) she elected full coverage based on full base pay. Her spouse concurred with her election on 11 June 2012.
3. Information received from the Defense Finance and Accounting Service indicates the applicant is enrolled under the SBP for the spouse and child election.
4. On 24 March 2013, the applicant reached age 60 and was placed on the Retired List in pay grade E-7.
5. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. Election of beneficiaries is made by category only, not by name. Except as provided by law, an election, once made, is irrevocable. Elections received that have not been properly completed result in an automatic full coverage election based on the individual's dependents at the time.
6. 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.
7. Public Law 105-85, enacted on 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 the SBP. The spouse's concurrence is required. No premiums will be refunded to those who opt to disenroll.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that her records should be corrected to show she declined participation in the SBP and her participation should be cancelled.
2. It appears that the applicant did not properly complete her election form to decline SBP coverage. Therefore, it cannot be determined if her spouse was concurring with a request not to participate or with a request to participate. She was then automatically enrolled for full spouse and child coverage based on her dependents at the time and her indication that she desired full coverage.
3. It does appear that between March 2012 when she improperly completed the form and March 2013 when she turned age 60 someone in the appropriate office should have recognized the form was improperly completed. However, the applicant did not now provide an up-to-date statement from her spouse indicating that he did and still does concur with her election not to participate in the SBP.
4. If the applicant can provide such a statement from her spouse she may apply for reconsideration with the understanding that such a request would not guarantee that the Board would grant her request. Or, under current statutes the applicant may exercise her option to disenroll during the one-year period beginning on the second anniversary of the date of her retirement.
5. Accordingly, there appears to be no basis to grant the applicant's request.
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) AR20130008355
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ABCMR Record of Proceedings (cont) AR20130008355
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