IN THE CASE OF:
BOARD DATE: 18 March 2014
DOCKET NUMBER: AR20130010501
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 all payments made to date.
2. The applicant states that upon out-processing at Fort Carson on or about 8 August 2012, he and his wife signed a DD Form 2656 declining SBP enrollment at the transition point. Upon noticing the SBP payments on his first monthly retiree statement, he contacted the official at the Fort Carson Transition Point and was told the original of the DD Form 2656 was forwarded to the Defense Finance and Accounting Service (DFAS) and he was given a copy. The transition point did not have a copy and he has been unable to locate his copy. Officials at DFAS claim they never received the DD Form 2656. Accordingly, he requests disenrollment from the SBP and reimbursement for all premiums paid.
3. The applicant provides two DA Forms 2626-2 (SBP Termination Request), letters requesting disenrollment from himself and his spouse, and a letter from DFAS.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 20 August 1991. He completed his training and remained on active duty through a series of reenlistments. On 17 December 2012, he was honorably retired in pay grade E-7 due to disability, temporary (enhanced). He completed 21 years, 3 months, and 28 days of active service and was placed on the Temporary Disability Retired List effective 18 December 2012.
2. A review of the applicant's official records failed to show any SBP elections made by him.
3. On 24 April 2013, DFAS notified the applicant that they could not terminate his participation in the SBP as there was no DD Form 2656 on file. He was advised to apply to the Board.
4. 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 SBP coverage.
5. Title 10, U.S. Code, section 1448 provides that effective 1 March 1986, a married member is enrolled with spouse coverage on full retired pay at the time of retirement unless that spouse has concurred in writing to another election requested by the member pursuant to Department of Defense Financial Management Regulation, volume 7B, chapter 43. When the spouse's concurrence is required, the signature indicating concurrence must be corroborated by one or more witnesses.
6. 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 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 claims he and his spouse signed a DD Form 2656 electing not to participate in the SBP; however, the applicant has not provided such a form and DFAS contends that none was received. Consequently, he was automatically enrolled in the SBP with full coverage in accordance with laws and regulations in effect at the time. Accordingly, there was no error or injustice in this case.
2. The applicant's contention that the DD Form 2656 completed by him and his spouse was forwarded to DFAS by the transition point at the time of his retirement was carefully considered. Inasmuch as the form was not received by DFAS, automatic enrollment occurs. While the sincerity of his claim is not in doubt, without a copy of the form in question or independent evidence such as a statement from the transition point official personally involved in both executing the form and transmitting it to DFAS, there is no way to verify that such was the case. In any event, the applicant still has the option of withdrawing from the SBP during the 1-year period beginning on the second anniversary of the date on which his retired pay started.
3. Since he failed to provide sufficient evidence to show he and his spouse opted out of participation in the SBP and he has the option of terminating his SBP participation beginning on the second anniversary of the date on which his retired pay started, provided his spouse concurs, there appears to be no basis to grant his requested relief.
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) AR20130010501
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ABCMR Record of Proceedings (cont) AR20130010501
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