IN THE CASE OF:	  

		BOARD DATE:	  20 February 2014

		DOCKET NUMBER:  AR20130010128 


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 disenrollment from the Survivor Benefit Plan (SBP) and reimbursement of premiums paid since her retirement in April 2013. 

2.  The applicant states:

* she made an election in 1999 (not 1997) when she received her 20-year letter but she was told she would have the opportunity to change this election when she retired
* upon retirement in 2012, she filled out a declination of coverage form but did not hear back 
* she was also told she would have to be divorced or her spouse would have to have been deceased to change the coverage
* she was then told to complete a DD Form 2656-2 (SBP Termination Request) and fax it
* she received a letter from the Defense Finance and Accounting Service (DFAS) informing her none of what she was told was true
* after reading all the information about the Reserve Component SBP (RCSBP) she could not find a reason preventing her from submitting a request to decline coverage, at age 60
* she is unsure why she has to live with a decision that she made 14 or 15 years prior to retirement
* she should not be penalized because she was informed nor should be denied the funds needed to sustain her daily living


3.  The applicant provides:

* Letter from DFAS, dated 4 April 2013
* DD Form 2656-2, dated 5 March 2013
* Letter from DFAS, dated 10 May 2013
* Notification of Eligibility for Retired Pay at Age 60 (20-year letter)
* DD Form 1883 (SBP Election Form)

CONSIDERATION OF EVIDENCE:

1.  The applicant's record show she was born in March 1953.  She and her spouse, Elijah, were married on 11 September 1999. 

2.  She enlisted in the U.S. Army Reserve (USAR) on 10 July 1979.  She served through multiple reenlistments in a variety of assignments and she attained the rank/grade of master sergeant (MSG)/E-8. 

3.  On 11 August 1999, the U.S. Army Reserve Personnel Command, St. Louis, MO, issued her a Notification of Eligibility for Retired Pay at Age 60 (20-year letter). 

4.  On 8 October 1999, she completed a DD Form 1883.  She indicated she was married to Elijah and they had no dependent children.  She elected "spouse" SBP coverage, based on the full amount, Option C (immediate coverage).  She and her spouse, Elijah, authenticated this form with their signatures. 

5.  On 22 October 2012, the U.S. Army Human Resources Command (HRC), Fort Knox, KY, published orders placing her on the Retired List in her retired rank/grade of MSG/E-8, effective 1 March 2013.  

6.  She provides a DD Form 2656-2, dated (signed) 5 March 2013.  She indicated that she wished to discontinue participation in the SBP.  Her spouse and a witness placed their signatures on this form. 

7.  On 2 April 2013, HRC published amendment orders amending the date placing her on the Retired List from 1 March to 1 April 2013. 

8.  On 4 April 2013, by letter, DFAS notified her that she only has a one-year window to withdraw from the SBP, starting on the 25th month through the 36th month after her first eligibility to receive retired pay.  Since she has been retired for 2 months, she was not yet eligible to withdraw.  

9.  On 10 may 2013, by letter, DFAS responded to her inquiry regarding the SBP. DFAS explained the program, the option she elected, and the criteria for discontinuation. 

10.  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/transferred to the Retired List on or after that date is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the Retired List.

11.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for Reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are 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

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.

13.  Public Law 106-398, dated 30 October 2000, requires that upon receipt of the 20-year letter, a qualified Reserve Component member who is married will automatically be enrolled in the RCSBP under option C (spouse and children coverage) based on the full amount unless the spouse's concurrence is provided to allow one of the following elections:

* option A (defer enrollment to age 60)
* option B (enroll and pay annuity when member would have been age 60 for spouse or spouse and children at less than maximum amount or enroll children only)
* option C (enroll and pay an annuity immediately upon death, but enroll spouse or spouse and children at less than maximum amount or enroll children only)

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows, upon receipt of her 20-year letter, the applicant submitted a DD Form 1883, electing spouse SBP coverage, based on the full amount, Option C.  Her spouse concurred.  This option provided the applicant's spouse with an immediate annuity should she have died prior to reaching age 60.  Had the applicant died prior to reaching age 60, her spouse would have been entitled to the SBP annuity.  

2.  An election, once made, was irrevocable except in certain circumstances, such as divorce, death, or congressionally-mandated changes.  Qualified Reserve Component members who make an election under Option C do not have the option to change that election upon reaching age 60.  Once the retiree reaches age 60, the RCSBP coverage rolls into SBP coverage.  That is why the applicant pays two premiums:  the cost of RCSBP coverage between 1999 (20-year letter) and 2013 (age 60) and the cost of the SBP (April 2013). 

3.  The applicant completed a DD Form 2656-2 in April 2013.  This form is invalid because 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 spouse's concurrence is required.  No premiums will be refunded to those who opt to disenroll.  The earliest date she can terminate her SBP is April 2015 (through March 2016) and she can do so directly with DFAS. 

4.  Nothing in her records shows she was improperly counseled or that she was led to believe SBP coverage is a free retiree benefit.  The decision to enroll or not enroll in the SBP is a personal decision made by the Soldier.  The cost of SBP coverage is determined by several factors, most importantly the type of coverage elected.  Counselors are not financial counselors.

5.  There is insufficient evidence to show an error or an injustice occurred.  As such, she is not entitled to correction of her records to show she rescinded her election to participate in the SBP, nor is she entitled to a refund of the SBP premiums.





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)                                         AR20130010128



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ABCMR Record of Proceedings (cont)                                         AR20130010128



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