IN THE CASE OF:
BOARD DATE: 8 January 2015
DOCKET NUMBER: AR20140018893
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, reenrollment in the Survivor Benefit Plan (SBP) for spouse coverage.
2. The applicant states he retired from the Army after serving 20 years in 2005. He mistakenly discontinued SBP between the 25th and 36th months after his retirement. He was then recalled to active duty from July 2011 to July 2013 but he was to be given the opportunity to enroll his family in the SBP. He admits that he mistakenly disenrolled; however, after being recalled to active duty he again retired. He agreed to being recalled to active duty believing that he would have another opportunity to enroll his family in the SBP. He and his wife had a late-in-life son who is now 12 years old. He (the applicant) is 70 percent disabled by the Department of Veterans Affairs and his family needs the SBP in case of death.
3. The applicant does not provide any evidence.
CONSIDERATION OF EVIDENCE:
1. The applicant's records show he was born in February 1960.
2. Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer and entered active duty on 13 December 1985. He served in a variety of stateside or overseas assignments and he attained the rank of major (MAJ).
3. His records show he was married to Trudy and they have three dependent children, Kirby, born in 1985; Ryan, born in 1987; and Joshua, born in 2002.
4. His SBP election is not available for review with this case. However, his pay records at the Defense Finance and Accounting Service (DFAS) show he was automatically enrolled in the SBP, spouse (and children) coverage, upon his retirement in July 2005.
5. He retired on 30 June 2005 and he was placed on the Retired List in his retired rank of MAJ on 1 July 2005. He was credited with over 20 years of active service.
6. His pay records at DFAS also show he terminated his SBP coverage on 12 October 2007.
7. He was ordered to active duty on 24 July 2011 and he was assigned to Wake Forest University, Winston-Salem, NC. He was honorably released from active duty on 23 July 2013 and reverted back to his retired status.
8. Public Law 92-425, enacted on 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 under very specific circumstances. Those previously retired before September 1972 were given the option to enroll in the SBP.
9. Title 10, U.S. Code, section 1448a - Election to discontinue participation: one-year opportunity after second anniversary of commencement of payment of retired pay, states a participant in the SBP may, subject to the provisions of this section, elect to discontinue participation in the SBP at any time during the one-year period beginning on the second anniversary of the date on which payment of retired pay to the participant commences. Once participation is discontinued, benefits may not be paid in conjunction with the earlier participation in the SBP and premiums paid may not be refunded. Participation in the SBP may not later be resumed except through a qualified election under paragraph (5) of subsection (a) (A person who is not married and has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the Plan) or under subparagraph G (Election of new beneficiary upon death of previous beneficiary) of this paragraph.
DISCUSSION AND CONCLUSIONS:
1. The applicant was enrolled in the SBP for spouse (and children) coverage upon his retirement in July 2005. However, he voluntarily elected to discontinue participation during the one-year period beginning on the second anniversary of the date on which payment of his retired pay commenced.
2. Unfortunately, once he did so, participation in the SBP could no longer be resumed except through a qualified election under certain conditions that do not apply in his case (a person who is not married and has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP or election of new beneficiary upon death of previous beneficiary).
3. The requirements of the SBP are embedded in the law and changes to the law are not within the purview of this Board. The applicant made a conscious choice to discontinue participation. He is not entitled to the 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) AR20140018893
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20140018893
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