BOARD DATE:	  30 October 2014

		DOCKET NUMBER:  AR20140001632 


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, in effect, that his records be corrected to show he declined participation in the Survivor Benefit Plan (SBP) no later than 3 May 2013, cancellation of all deductions, and reimbursement of all premiums paid.

2.  The applicant states, in effect, that his DD Form 2656-5 (Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate), dated 12 May 2007, well within 90 days of receipt of his Twenty-Year Letter, clearly and unambiguously shows that he declined to make an election until age 60 and his election to decline participation in the SBP on his DD Form 2656 (Data for Payment of Retired Personnel), dated 23 September 2013, some eleven months before he reached age 60, conclusively proves by a preponderance of the evidence the merits of the relief sought in both law and equity.

3.  The applicant provides:

* Marriage Certificate
* Memorandum, Notification of Eligibility for Retired Pay at Age 60 
(Twenty-Year Letter), dated 15 February 2007
* DD Form 2656-5, dated 12 May 2007
* Orders A-09-027302, dated 30 September 2010
* Orders A-12-034628, dated 17 December 2010
* Orders C-03-303935, dated 13 March 2013
* Memorandum, Attainment of Maximum Service, dated 1 December 2012
* Election of Options-Maximum Service, dated 26 December 2012
* Early Age Drop Submission of Retired Pay Application, dated 21 June 2013
* DD Form 2656, dated 22 June 2013
* Chronological Statement of Retirement Points, dated 5 July 2013
* Orders C07-395516, dated 17 July 2013
* Retiree Account Statement, effective 11 September 2013
* three DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 2656, dated 23 September 2013
* Memorandum, DFAS Retiree and Annuitant Pay, dated 8 October 2013
* email correspondence between the applicant and various Defense Finance and Accounting Service (DFAS) Retired Pay officials
* Record of Proceedings for ABCMR Docket AR20120000922 and AR201200004580

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 3 August 1954 and he married his spouse, Nancy, on 24 August 1973.

2.  On 4 April 1983, he was appointed as a first lieutenant in the U.S. Army Reserve (USAR).

3.  On 15 February 2007, the U.S. Army Human Resources Command (HRC) issued him a Twenty-Year Letter.  This letter notified him that he had completed the required years of service and would be eligible for retired pay upon application at age 60.

4.  On 11 May 2007, he completed a DD Form 2656-5 and he elected to decline to make an SBP election until age 60.  His spouse concurred with this election on 12 May 2007 and her signature was notarized.

5.  Orders C07-395516, issued by HRC, dated 17 July 2013, placed the applicant on the Retired List effective 3 May 2013.

6.  On 21 June 2013, at age 59, he submitted his Retired Pay Application based on an Early Age Drop.  His DD Form 2656, dated 22 June 2013, submitted in conjunction with his request shows he enrolled in the SBP for spouse only based on full gross pay.  His spouse concurred with this election.



7.  His DFAS retired pay records show that:

	a.  SBP premiums totaling $820.32 based on spouse only SBP coverage and $46.65 for Reserve Component Survivor Benefit Plan (RCSBP) where deducted from his Retiree Account Statement (RAS), effective 11 September 2013;

	b.  On 23 September 2013, he applicant and his spouse completed a second DD Form 2656 and submitted a request to suspend/eliminate SBP costs until such time as the notarized DD Form 2656 could be processed.  On this form the applicant elected not to participate in the SBP and he indicated that he did not have eligible dependents under the plan.  His spouse and a notary public authenticated this form on 23 September 2013; and

	c.  DFAS responded to the applicant's request on 8 October 2013, informing him that based on the recently-received documents (listed above) that his RCSBP would be corrected to show he elected spouse full coverage SBP.  However, his request to decline SBP could not be processed because his subsequent election received on 24 September 2013 was invalid, having been dated after his DD Form 108 (Application for Retired Pay Benefits) and his retirement date; therefore, his current SBP election received on 24 June 2013 would remain in effect.

8.  He submitted a timeline of events in which he states:

	a.  He was placed on the Retired List effective 3 May 2013, some 15 months earlier than his 60th birthday on 3 August 2014;

	b.  On 21 September 2013, he received his first RAS, effective 11 September 2013, providing him the first indication that he would be charged an unexpected and heretofore undisclosed premium cost of $273.44 each month going back to 3 May 2013 charged against his retirement benefits; 

	c.  On 23 September 2013, he and his spouse immediately contacted DFAS to explain that it was never their intent to have their retirement benefits reduced by any premium for SBP and because no benefits had been received, they sought to correct this error.  The DFAS official instructed them to submit another DA Form 2656 which was faxed to DFAS and confirmed receipt for the third time on 25 September 2013; and

	d.  On 25 September 2013, DFAS denied his request leaving him, a 30-year highly-decorated combat veteran currently under the Department of Veteran's Affairs care for traumatic brain injury incurred in Afghanistan, with no alternative but to seek relief through the Army Review Boards Agency.
9.  In addition, he provided two ABCMR cases in which previous applicants were granted relief from their SBP premiums.  After review by the ABCMR analyst, the circumstances of these cases, although similar, differ on one key point in that the parties in the previous cases never made an election on their DD Form 2656 enrolling in the SBP for spouse only based on full gross pay.

10.  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. 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/transfers 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 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.  

12.  The National Defense Authorization Act (NDAA) of 2008 reduces the retirement age for Reserve Component Soldiers from 60 to a lesser age but not below age 50 for those who have served on active duty in an eligible status on or after 29 January 2008.  If a Soldier is called to active duty for the express purpose of Overseas Contingency Operations (formerly the Global War on Terrorism (GWOT)) or its derivatives on or after 29 January 2008, each day on that active duty tour counts toward a reduction in retirement age.  However, even though each day counts, days are credited in aggregates of 90 days only within any Fiscal Year.  Soldier must be under the authority code 12301(d), 12302, or 12304.  

13.  The HRC website contains information regarding the Retired Pay Processing - Non-regular Retirement (Age 60/Reduced Age).  It states that Soldiers eligible for age 60 reserve retirement are mailed an application packet during the month of their 59th birthday.  Soldiers eligible for Reduced Age (Early Drop) reserve retirement must download or contact HRC for a retirement application and submit a retirement pay application no less than nine months from eligibility date.



DISCUSSION AND CONCLUSIONS:

1.  The applicant retired on 3 May 2013 at 59 years of age under the provisions of the Early Age Drop policy.

2.  He contends that because his request to decline participation in the SBP came prior to him reaching age 60 his participation in the SBP should be terminated and all his premiums should be refunded.

3.  He cites two previous ABCMR cases in which applicants were granted relief; however, in these cases the previous applicants, unlike the applicant, never made a formal notarized election to participate in the SBP.  As such, these cases are distinguishable on their facts and do not support the applicant's position.

4.  The evidence of record shows that he completed an initial DD Form 2656-5 on 12 May 2007 wherein he, with his wife's concurrence, elected to defer his SBP election to age 60.  The applicant requested retirement under the Early Age Drop policy and on 22 June 2013 and, in conjunction with his application for retired pay, he elected SBP coverage for spouse only at the full rate.  This election was affirmed by his spouse and notarized.  After receiving his RAS, effective 11 September 2013, he and his spouse completed a second DD Form 2656 electing not to participate in SBP and these documents contain his spouse's notarized concurrence.

5.  The fact that the applicant had not reached age 60 (normal retirement age) at the time of his election was based solely on his request for early retirement.  To allow an individual who voluntarily elects to retire at age 59 or younger to delay making an SBP election until age 60 and receive retirement benefits/compensation would afford him an opportunity not given to any other retiree.

6.  Although the applicant now contends that it was never his intent to participate in the SBP, his DD Form 2656 dated 22 June 2013 clearly and indisputably shows otherwise.  The DD Form 2656 dated 23 September 2013 is invalid because it came both after the effective date of his retirement and after his application for retired pay.  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 the SBP.  No premiums will be refunded to those who opt to disenroll.  The earliest date he can terminate his SBP is 23 June 2015 and he can do so directly with DFAS. 

7.  In view of the foregoing evidence, there is insufficient evidence to support granting the 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 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)                                         AR20140001632





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ABCMR Record of Proceedings (cont)                                         AR20140001632



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