IN THE CASE OF:  	  

		BOARD DATE:  28 October 2014	  

		DOCKET NUMBER:  AR20140001833 


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 correction of his records to show he declined participation in the Survivor Benefit Plan (SBP).

2.  He states, in effect, that he placed an "X" in item 26a (I ELECT COVERAGE FOR SPOUSE ONLY") on his DD Form 2656 (Data for Payment of Retired Personnel), but this was wrong because they do not want coverage.  The plan was not explained to them well.  They were rushed through the forms and did not discover the problem until later.

3.  He provides the back page of his DD Form 2656 and a letter from the Defense Finance and Accounting Service (DFAS).

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 23 June 1952.  He served in the Regular Army from 15 October 1970 through 10 October 1973 and he was released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) until the completion of his statutory obligation on 14 October 1976.  On 12 October 1981, he enlisted in the Army National Guard (ARNG).

2.  The Oregon Military Department, Headquarters, Oregon National Guard sent the applicant his Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  The notification letter indicated that an SBP packet was enclosed and he had 90 days from the date of the letter to make a decision.  On 9 January 2000, he acknowledged that he had received the Survivor Benefit Packet (DD Form 1883 (SBP Election Certificate) and Army Reserve Personnel Center (ARPC) Form 3854 (Reserve Component Supplement SBP Election Certificate 
(RC-SSBP)).

3.  On 1 March 2000, the applicant and his spouse completed a DD Form 1883.  The "Monthly Cost and Annuity" portion of this form explains that the cost for "Spouse only" coverage is 2 1/2 percent of the first $300, plus 10 percent of any designated retired pay in excess of $300.  This form shows the applicant indicated that he:

* was married
* had no dependent children
* desired "Spouse only" SBP coverage based on the full amount of retired pay
* desired "Option A (Defer)," thereby choosing to decline making an election at the time with the understanding that he would remain eligible to make an election for coverage at age 60

4.  On 1 March 2000, the applicant completed an ARPC Form 3854 wherein he declined to elect coverage in the RC-SSBP at the time.

5.  The applicant reached age 60 on 23 June 2012. 

6.  On 23 June 2013, the applicant completed a 4-page DD Form 2656 which includes 2 pages of detailed guidance and instructions that address each item of the form.  This form shows:

* he placed an "X" in item 26a to elect coverage for spouse only
* he placed another "X" in item 26a to indicate that he had no dependent children
* he placed an "X" in item 27 (I ELECT COVERAGE BASED ON FULL GROSS PAY)
* Section X (Remarks) states, in part, "I have been counseled that I can terminate SBP participation, with my spouse's written concurrence, within one year after the second anniversary of commencement of retired pay."
* he authenticated the form with his signature

7.  On 12 October 2012, after completing 34 years, 11 months, and 26 days of total service for retired pay, he was discharged from the ARNG, transferred to the Retired Reserve, and placed on the Retired List in the rank/grade of sergeant first class/E-7.

8.  In a letter, dated 31 December 2013, a military pay technician representing Retired and Annuitant Pay, DFAS, London, KY informed the applicant that his SBP request could not be processed because their office cannot change an election for the SBP and referred him to this Board.

9.  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.

10.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who 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:  (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment until the date of the member's 60th birthday; and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  At the time, an election must have been made within 90 days of receipt of the 20-year letter or the member would have to wait until reaching age 60 to make an SBP election.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was not properly counseled regarding the SBP; however, he provided no evidence that he was provided misinformation by government officials.

2.  The evidence of record shows the applicant and his spouse indicated that they desired participation in the SBP on a DD Form 1883 on 1 March 2000, but deferred making an election until the applicant reached age 60.

3.  Thirteen years later, after reaching age 60, the applicant completed a DD Form 2656 wherein he elected spouse only coverage based upon the full amount of his retired pay.  DD Form 2656 is a 4-page document which includes 2 pages of detailed guidance and instructions that address each item of the form.
By authenticating this document with his signature, the applicant acknowledged that he had been counseled that he could terminate SBP participation, with his spouse's written concurrence, within one year after the second anniversary of commencement of retired pay.

4.  As a senior noncommissioned officer with nearly 35 years of creditable service for retired pay, the applicant should have been familiar with the SBP.  If not, he had over 13 years after deferring his election during which he could have exercised due diligence by seeking clarification.

5.  The plain language of the DD Form 2656 indicates the applicant elected full spouse coverage.  There is no evidence to show a Government error or an injustice occurred.  As such, the applicant is not entitled to correction of his records to show he declined to participate in SBP and his spouse concurred in a timely manner.  

6.  As cited above, the applicant has a 1-year period beginning on the second anniversary of the date on which his retired pay started to withdraw from the SBP.  A notarized statement from his spouse is required.   

7.  In view of the foregoing, there is no basis for granting 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 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)                                         AR20140001833



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ABCMR Record of Proceedings (cont)                                         AR20140001833



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