IN THE CASE OF:  	  

		BOARD DATE:  27 January 2015	  

		DOCKET NUMBER:  AR20140007775 


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 in March 2013 he completed a DD Form 2656 (Data for Payment of Retired Personnel) wherein he elected to participate in the SBP.
Several months later he submitted another DD Form 2656 wherein he and his spouse declined participation in the SBP, but this second DD Form 2656 was either lost or ignored.  The applicant and his spouse desire to terminate their enrollment in the SBP because they are certain that it does not serve in their best interests since the cost of maintaining the SBP does not justify the potential benefit that it provides.

3.  He provides:

* a marriage certificate
* a DD Form 2656, dated 12 March 2013
* a partially completed (the back page) DD Form 2656, dated 12 November 2013
* a Defense Finance and Accounting Service (DFAS) Retiree Account Statement (RAS)

CONSIDERATION OF EVIDENCE:

1.  Throughout the applicant's military career he had periods of both enlisted and commissioned officer service during the period 29 March 1972 through 11 July 2013.  He served in the Regular Army (RA), the U.S. Army Reserve (USAR), and the Army National Guard ARNG.

2.  The applicant and his spouse were married on 28 May 1977.

3.  On 3 May 1994, the Department of Military Affairs, Adjutant General's Office, Commonwealth of Pennsylvania, Fort Indiantown Gap, PA, sent the applicant his Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

4.  On 9 July 1994, the applicant completed a DD Form 1883 (SBP Election Form).  This form contains a statement that reads as follows:  "IMPORTANT:  The decision you make with respect to participation in this Survivor Benefit Plan is a permanent irrevocable decision.  Please consider your decision and its effect carefully.  This form shows he indicated that he had a spouse and three children at the time.  The applicant placed an "X" in:

* item 8b electing coverage for "Spouse and children"
* item 9a electing to provide an annuity based on the full amount of his retired pay
* item 9c electing "Option C" for immediate coverage

5.  On 12 March 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 (I ELECT COVERAGE FOR SPOUSE ONLY")
* 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
* his signature was witnessed

6.  On 11 July 2013, after completing 38 years, 7 months, and 27 days of total service for retired pay, he was discharged from the ARNG in the rank/grade of first sergeant/E-8, transferred to the Retired Reserve, and placed on the Retired List in the rank/grade of captain/O-3 on 12 July 2013.

7.  The applicant's DFAS RAS for the period ending 25 October 2013 shows a deduction was taken from his retired pay to pay the monthly premium for RCSBP coverage as well as SBP coverage.  He was also advised that he had paid 2 months toward his 360 months of paid up RC/SBP coverage and advised that once he has paid at least 360 months toward his coverage and turns age 70, his costs will be terminated, but his coverage will remain in effect.

8.  The applicant provides a partially completed DD Form 2656, dated 12 November 2013.  The front page of this form is blank, but the back page of this form shows:

* he placed an "X" in item 26g (I ELECT NOT TO PARTICIPATE IN SBP")
* he authenticated the form with his signature and his signature was witnessed
* his spouse authenticated the form with her signature and her signature was witnessed

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.  RCSBP coverage converts to SBP coverage at age 60.

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 desires to terminate SBP coverage because he and his spouse are certain that it is not fiscally prudent.  He provided no evidence that he was provided misinformation by government officials.

2.  The evidence of record shows the applicant elected participation in the RCSBP on a DD Form 1883 on 9 July 1994.  At that time he elected immediate spouse and children coverage with an annuity based upon the full amount of his retired pay.  This election was irrevocable and automatically rolled over into SBP coverage.

3.  The evidence of record further shows the applicant attempted to elect participation in the SBP on a DD Form 2656 on 12 March 2013.  This form shows he had a spouse, but no dependent children at the time.  Eight months later, and after receiving retired pay for at least 3 months, the applicant and his spouse partially completed another DD Form 2656 wherein they attempted to decline participation in the SBP.  However, he was not eligible to either elect or reject SBP at that time due to his previous election of RCSBP coverage.

4.  The plain language of the DD Form 1883 indicates the applicant made an irrevocable election for immediate RCSBP coverage based upon the full amount of his retired pay on 9 July 1994.  Therefore, he was not eligible to render an SBP election of either 12 March 2013 or 12 November 2013.  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.  He may seek to terminate his SBP coverage in the one-year period following the two-year anniversary of his receipt of Retired Pay.  A deduction for RCSBP will continue in order to pay for the protection provided his wife during the period from 1994 to his 60th birthday.

5.  There is no evidence to show a Government error or an injustice occurred; therefore, 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)                                         AR20140007775





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ABCMR Record of Proceedings (cont)                                         AR20140007775



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