IN THE CASE OF:	  

		BOARD DATE:	  2 July 2015

		DOCKET NUMBER:  AR20140017069 


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 termination of his participation in the Survivor Benefit Plan (SBP) and refund of his SBP premiums.

2.  He states when he was medically discharged, he received a short briefing about SBP which he did not understand the annuity portion.  He adds he was never told about the cost and/or the payment period.  He was aware he was responsible for paying SBP premiums once he began receiving benefits from the Department of Veterans Affairs for his 100 percent disability rating.  He states he talked to a representative with the Defense Finance and Accounting Service (DFAS) and was informed of the amount of money that he would have to pay for the SBP.  He argues that he would not have agreed to this plan had he been informed.

3.  He provides:

* Self-authored statement with his sworn statement
* Spouse sworn statement
* DD Form 2656-6 (SBP Election Change), dated 23 September 2014
* DFAS Statement, dated 28 September 2014 

CONSIDERATION OF EVIDENCE:

1.  On 1 August 2008, the applicant received his Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  The letter indicated that detailed information concerning Reserve Component (RC) SBP program and cost was enclosed.  It further stated that he had 90 days from the date of the letter to make a decision or he would be automatically enrolled in the RCSBP under Option C, Spouse and Child(ren) coverage based on full retired pay.

2.  On 18 October 2008, he completed a DD Form 2656-5 (RCSBP Election Certificate) electing "Option C (IMMEDIATE ANNUITY) at full retired pay."

3.  On 1 June 2012, the U.S. Army Physical Disability Agency notified the applicant that he was found to have a disability and he would be permanently retired with a disability rating of 90 percent.  In order for DFAS to activate his retired pay and establish his retired pay account, he was required to complete DD Form 2656 (Data for Payment of Retired Personnel). 

4.  On 6 July 2012, he was released from the Army National Guard because of physical disability and placed on the Retired List for permanent physical disability.

5.  On 24 July 2012, he completed DD Form 2656 and elected coverage for spouse only based on his full gross pay.

6.  A DFAS statement, dated 28 September 2014, show the applicant's monthly cost for SBP was $214.78 with a prior amount due of $1,971.10.  The total amount due by the date of the statement was listed as $2,195.48.

7.  On 23 October 2014, the applicant completed a DD Form 2656-6 (SBP Election Change Certificate) requesting to "Suspend Coverage" and his spouse signed the form the same day.  The form is notarized.

8.  The applicant's spouse stated she and her spouse went to the Oklahoma Military Department to out-process on his departure from the military.  She said she did not hear about the spouses' SBP until receiving a letter stating that they were in debt for over $2,100.00.  She stated that options under SBP were never discussed because it they had been, she would have remembered.

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. 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.
10.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had 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 of it until the date of the member’s 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay.  Once a member elects either Options B or C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP – it automatically rolls into SBP coverage.  If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection had the member died prior to 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 evidence of record shows on 1 October 2008, he received his 20-year letter.  The letter indicated that detailed information concerning the RCSBP and cost was enclosed.  On 18 October 2008, he completed DD Form 2656-5 electing immediate coverage at the full base amount.  

2.  The evidence further shows on 1 June 2012, the U.S. Army Physical Disability Agency notified him of his permanent retirement due to disability and his requirement to complete DD Form 2656 to activate his retired pay and establish his retired pay account.  He completed this form on 24 July 2012 and again elected coverage for spouse only at his full base amount.

3.  It is unfortunate that he and his spouse believe that they were not informed about SBP and/or the cost of the plan.  However, his 20 year letter indicated that information concerning the RCSBP and cost was enclosed.  Accordingly, 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.

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

5.  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)                                         AR20140017069





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ABCMR Record of Proceedings (cont)                                         AR20140017069



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