Search Decisions

Decision Text

ARMY | BCMR | CY2014 | 20140013615
Original file (20140013615.txt) Auto-classification: Approved

		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 spouse’s 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





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140013615



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

Similar Decisions

  • ARMY | BCMR | CY2015 | 20150009327

    Original file (20150009327.txt) Auto-classification: Approved

    The evidence of record shows the applicant submitted a DD Form 2656 and a DD Form 2656-1 wherein he elected to participate in the SBP for former spouse and children coverage pursuant to a written agreement previously entered into voluntarily as part of divorce proceedings and incorporated in a court order. The divorce proceedings do not compel the applicant to provide SBP coverage for his former spouse. Although the applicant indicated on the forms that he entered into a written agreement...

  • ARMY | BCMR | CY2011 | 20110023565

    Original file (20110023565.txt) Auto-classification: Denied

    The applicant states: * Upon his divorce in 2001, he notified officials at the Defense Finance and Accounting Service (DFAS) that he was divorced and did not want to participate in the SBP * When he applied for retired pay in January 2011, he and his new spouse elected not to participate in the SBP * When he received his first Retiree Account Statement, he noticed that he was enrolled in the SBP and his first wife was listed as the beneficiary * DFAS corrected the next pay statement by...

  • ARMY | BCMR | CY2015 | 20150001913

    Original file (20150001913.txt) Auto-classification: Approved

    The applicant states: * he never received a 20-year letter because he had issues with his retirement points and active time * after his points were corrected, he still did not receive a 20-year letter and was thus not given an opportunity to make an election * once he became retirement eligible, his retirement orders were issued in 2013 and backdated to 2006 * at the time of his retirement, he completed a DD Form 2656 (Data for Payment of Retired Personnel) * he was not married; he placed...

  • ARMY | BCMR | CY2011 | 20110014744

    Original file (20110014744.txt) Auto-classification: Approved

    The applicant requests, in effect, that the records of her deceased former spouse, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage. DFAS informed the Board's staff their records indicated that the FSM and applicant divorced on 1 April 2003. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing the FSM made a voluntary change in...

  • ARMY | BCMR | CY2009 | 20090012836

    Original file (20090012836.txt) Auto-classification: Denied

    In addition, he requests that his military records be corrected to show he elected RCSBP former spouse coverage. The applicant's military records show that he was honorably separated from the New Mexico ARNG on 31 January 2008 and he was transferred to the Retired Reserve. If he is requesting only that his RCSBP coverage be changed from insurable interest to former spouse, based on the evidence of record he has already been refunded the difference in premiums between insurable interest...

  • ARMY | BCMR | CY2012 | 20120001419

    Original file (20120001419.txt) Auto-classification: Approved

    The applicant requests correction of his records to show he changed his Survivor Benefit Plan (SBP) coverage from "spouse" to "former spouse" within 1 year of his divorce. His spouse did not authenticate this form as required by law when a member is married and elects children-only coverage, does not elect full spouse coverage, or declines coverage. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he elected SBP...

  • ARMY | BCMR | CY2008 | 20080016658

    Original file (20080016658.txt) Auto-classification: Approved

    The applicant states, in effect, he elected SBP coverage when he retired in 1996. While deployed to Iraq, the applicant discovered the beneficiary for his military retirement pay was his ex-wife. In the process he made the election to resume existing coverage for his new wife instead of making a decision to cancel his SBP coverage.

  • ARMY | BCMR | CY2009 | 20090020841

    Original file (20090020841.txt) Auto-classification: Denied

    The applicant states the following: * he was never informed he had to decline the SBP within 1 year of his divorce from his former spouse * he received no written communications from the military to keep him informed of these circumstances * the Tennessee Army National Guard requested that he complete a DD Form 2656 (Data for Payment of Retired Personnel) in 2008 for inclusion in his application for retired pay * he completed the DD Form 2656 and declined SBP 3. On 18 October 1991, the...

  • ARMY | BCMR | CY2002 | 2002075437C070403

    Original file (2002075437C070403.rtf) Auto-classification: Denied

    The applicant requests correction of military records as stated in the application to the Board and as restated herein. APPLICANT REQUESTS: In effect, that his records be corrected to show he terminated his Reserve Component Survivor Benefit Plan (RCSBP) coverage and he be refunded all premiums. DISCUSSION : Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

  • ARMY | BCMR | CY2011 | 20110020758

    Original file (20110020758.txt) Auto-classification: Approved

    The applicant provides the following documents: * FSM's Certification of Death * DD Form 1883, dated 19 June 2000 * DD Form 2656 (Data for Payment of Retired Personnel), dated 25 March 2004 * Divorce Decree, dated 26 July 2000 * Qualified Domestic Relations Order (QDRO), Military Retirement Benefits Agreement, dated 3 July 2001 * DD Form 2762 (Direct Deposit Authorization), dated 15 July 2011 * DD Form 2656-7 (Verification for Survivor Annuity), dated 15 July 2011 * Attorney letter and...