IN THE CASE OF:
BOARD DATE: 31 March 2015
DOCKET NUMBER: AR20140013615
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, to correct his records to show he did not elect to participate in the Survivor Benefit Plan (SBP), and to refund all SBP payments made after 14 November 2011.
2. The applicant states he divorced prior to his discharge and, based upon bad advice from the SBP counselor, he enrolled in SBP with his former spouse and children as his beneficiaries. His divorce decree does not require any financial support and the SBP payments have been putting a strain on his finances. He tried to have his SBP cancelled through the Defense Finance and Accounting Service (DFAS) but was told his only recourse was to apply to the ABCMR.
3. The applicant provides:
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 2656-2 (SBP Termination Request) showing his request to cancel SBP with the written concurrence of his former spouse
* divorce decree showing the court reserves its jurisdiction to award spousal support; no community assets or debts to be divided
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 17 September 2003.
2. On 8 August 2011, a physical evaluation board found the applicant was physically unfit for continued military service. He was recommended to be placed on the Temporary Disability Retired List (TDRL) and, on 14 November 2011, he was retired and placed on the TDRL.
3. His DD Form 214 shows the separation authority as Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph
4-24b(2) (Placement on the TDRL). The narrative reason shown is Disability, Temporary. He had a total net creditable active service of 8 years, 1 month, and 28 days.
4. A DD Form 2656 (Data for Payment of Retired Personnel), dated 28 September 2011 and signed by the applicant, shows, in Section IX (Survivor Benefit Plan), block 26 (Beneficiary Categories) he elected full SBP coverage for his former spouse and children. In Section X (Remarks) are identified two children who are shown as daughters of the applicant.
5. An email from the applicant confirms he has not since remarried, also that, in addition to his former spouse, he also wants his children removed as beneficiaries.
6. 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. An election to decline to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse coverage. The SBP is not an investment plan.
7. 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 spouses concurrence is required. No premiums will be refunded to those who opt to disenroll.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record confirms at the time of the applicant's retirement in 2011 he was divorced. It also shows he elected full SBP coverage for his former spouse and two children, as confirmed by his DD Form 2656. He requests his former spouse and children be removed as his beneficiaries.
2. Once an election to participate in SBP is made, the election is irrevocable except in specific circumstances. Retirees have a 1-year period beginning the second anniversary of the date on which their retired pay started, to withdraw from SBP. He submitted his application to the Board within that 1-year period and his request to remove his former spouse, therefore, should be favorably considered.
3. The law does not enable an applicant to recoup the premiums he has thus far paid, and that portion of his request which asks for a refund of premiums should not be granted.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
____X____ ___X_____ ___X_____ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his records to show he cancelled SBP on 15 November 2013.
2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to the refunding of premiums paid into the SBP.
____________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) AR20140013615
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ABCMR Record of Proceedings (cont) AR20140013615
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