IN THE CASE OF:  	  

		BOARD DATE:  6 March 2015	  

		DOCKET NUMBER:  AR20140011500 


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 his Survivor Benefit Plan (SBP) be stopped immediately.  In effect, he requests correction of his records to show he elected not to participate in the Reserve Component SBP (RCSBP). 

2.  The applicant states he was not counseled properly during his original outprocessing on how the SBP works.  He did not realize there would be an amount of money taken out of his pay.  After further review with more experienced staff, he determined the SBP is not for him.  He submitted an application after separation but it was rejected by the Defense Finance and Accounting Service (DFAS). 

3.  The applicant provides:

* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Marriage certificate
* Reconstructed DD Form 2656 (Data for Payment of Retired Personnel)
* Statement from his current spouse

CONSIDERATION OF EVIDENCE:

1.  The applicant was born in July 1971.  

2.  He enlisted in the Maine Army National Guard (MEARNG) on 7 June 1993.  He attained the rank/grade of staff sergeant (SSG)/E-6. 
3.  On 2 February 2010, the MEARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 

4.  On 10 April 2010, he completed a DD Form 2656-5 (RCSBP Election Certificate). This form warned him about the significance of the decision he was making.  He stated that he was not married but had two dependent children, born in November 1998 and May 1999 respectively.  He elected "children only" RCSBP coverage under Option C (immediate coverage) based on the full amount.  

5.  He and his spouse Eileen were married on 22 September 2012.  His marriage certificate shows he was previously married and was divorced on 9 December 2009. 

6.  There is no indication in his records he requested a change to his RCSBP coverage from "children only" to "spouse" or "spouse and children" coverage within 1 year of his marriage. 

7.  On 23 January 2013, the U.S. Army Physical Disability Evaluation Agency published Orders 023-10 releasing him from duty because of physical disability and placing him on the Retired List effective 27 February 2014. 

8.  On 10 February 2014, MEARNG published Orders 041-021 honorably discharging him from the ARNG and transferring him to the Retired Reserve effective 26 February 2014. 

9.  He was honorably discharged from the ARNG on 26 February 2014.  His NGB Form 22 shows he completed 24 years and 27 days of total service for retired pay.  

10.  He was placed on the Retired List in his retired rank/grade of SSG/E-6 on 27 February 2014 with a 70-percent disability rating. 

11.  He submits: 

	a.  A signed/notarized statement from his spouse Eileen, dated 14 June 2014, indicating she understands if her husband (the applicant) terminates his SBP, she will no longer be entitled to any post-death benefits and that this is her own decision to discontinue. 

	b.  A DD Form 2656, dated 2 March 2014.  He indicated he is married to Eileen and they have three dependent children.  He checked the box "I elect not to participate in the SBP."  He and a witness signed this form and his spouse, Eileen, also placed her signature indicating her concurrence with his decision. 

12.  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/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.  

13.  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.

14.  Title 10, U.S. Code, section 1448 states: 

	a.  Section 1448(a)(2), participation in the SBP applies to Reserve Component annuity participants.  A person who (i) is eligible to participate in the Plan under paragraph (1)(B), and (ii) is married or has a dependent child when he is notified under section 12731(d) of this title that he has completed the years of service required for eligibility for reserve-component retired pay, unless the person elects (with his spouse’s concurrence, if required under paragraph (3)) not to participate in the Plan before the end of the 90-day period beginning on the date on which he receives that notification.

	b.  Section 1448(a)(4), (B) Reserve-component annuity.— An election under paragraph (2)(B) is irrevocable if not revoked before the end of the 90-day period referred to in that paragraph.

	c.  Section 1448(a)(5), a person who is not married and has no dependent child upon becoming eligible to participate in the Plan but who later marries or acquires a dependent child may elect to participate in the Plan.  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child.  Such an election may not be revoked except in accordance with subsection (b)(3).  The election is effective as of the first day of the first calendar month following the month in which the election is received by the Secretary concerned.  In the case of a person providing a reserve-component annuity, such an election shall include a designation under subsection (e).

DISCUSSION AND CONCLUSIONS:

1.  The applicant was issued a 20-year letter in February 2010.  He was not married at the time but had dependent children.  Within 90 days of his 20-year letter, he submitted an RCSBP Election Certificate electing RCSBP coverage for "children only" coverage under Option C (immediate coverage), based on the full amount.  He was not 60 at the time.  This means if he had died prior to age 60, his beneficiary(ies) (children) would have been entitled to the annuity.  

2.  He and his spouse Eileen were married on 22 September 2012.  He entered the disability system shortly thereafter.  His disability retirement trumps his RCSBP election.  This means he was allowed to make a new election to decline coverage at that point.  

3.  His wife concurs with his election to decline coverage.  However, she did so on 2 March 2014.  He retired on 27 February 2014.  Her concurrence statement is not valid because her concurrence occurred after his retirement. 

4.  Nevertheless, during disability processing, Soldiers are introduced to various programs and/or briefings that may be overwhelming at times.  His intent is clear that he wanted to decline coverage.  His wife's intent is equally clear that she supported his decision, albeit a week after he retired.  It appears he did not want to participate in this program.  

5.  Although there is no statutory or regulatory error or injustice, as a matter of equity only, his records should be corrected to show he timely elected to decline SBP coverage, his spouse also timely concurred with his election, and his request was timely received and processed by DFAS. 

BOARD VOTE:

____X___  ____X___  ____X___ GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* showing he elected not to participate in the SBP and his spouse concurred with his decision on 27 February 2014
* showing DFAS timely received, accepted, and processed his request not to participate in the SBP
* auditing his pay records and reimbursing any overpayments of SBP premiums



      _______ _  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)                                         AR20140011500



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ABCMR Record of Proceedings (cont)                                         AR20140011500



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