IN THE CASE OF:
BOARD DATE: 6 August 2015
DOCKET NUMBER: AR20140019285
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 disenrollment from the Survivor Benefit Plan (SBP) and that all premiums that she paid be returned.
2. The applicant states that she declined participation in the SBP, her husband signed the DD Form 2656 concurring, and the notarized form was returned to Fort Knox, Kentucky in April 2014. However, officials at Fort Knox indicate they never received the paperwork and she was automatically enrolled in SBP with full spouse coverage. She continues by stating that $180 per month is being deducted from her pay and she desires that those premiums be returned to her.
3. The applicant provides a notarized statement from her spouse.
CONSIDERATION OF EVIDENCE:
1. The applicant was serving as a sergeant first class in the Active Guard Reserve Program at the U.S. Army Human Resource Command on 26 March 2014 when she completed a DD Form 2656 (Data for Payment of Retire personnel) electing to decline participation in the SBP.
2. On 27 March 2014, the retirement service office (RSO) at Fort Knox dispatched a certified letter by mail to the applicants spouse along with a Spouse SBP Concurrence Statement and instructions to complete and return it no later than 1 September 2014.
3. On 31 August 2014, the applicant was honorably retired by reason of length of service. She had served 23 years, 4 months, and 27 days of active service.
4. On 3 September 2014, the RSO authored a statement indicating applicants spouse had not returned the Spouse SBP Concurrence Statement as of that date.
5. The statement provided by the applicants spouse indicates he returned the Spouse SBP Concurrence Statement in April 2014 and that he concurred with the applicants declination of the SBP.
6. SBP is a life insurance program that pays an annuity to eligible beneficiaries upon the death of covered former service members. As a Federal Government insurance program, mainly subsidized by participant premiums, it is strictly governed by Federal statutes that set forth rules for its operation, including eligibility for enrollment, designation of beneficiaries, and authorized changes to beneficiaries. Retirees do not earn SBP through their service they earn the right to participate in SBP.
7. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provides that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to eligible surviving family members. An election, once made, is irrevocable except in certain circumstances. Public Law 99-145, enacted 8 November 1985, but effective
1 March 1986, required a spouses written concurrence for a retiring member's election that provides less than the maximum spouse coverage.
8. Title 10, U.S. Code, section 1448 provides, in pertinent part, that effective
1 March 1986, a married member is enrolled in SBP with spouse coverage based on full retired pay at the time of retirement unless that spouse has concurred in writing to another election requested by the member pursuant to Department of Defense Financial Management Regulation, Volume 7B, Chapter 43. When the spouse's concurrence is required, the signature indicating concurrence must be corroborated by one or more witnesses. This chapter also states, in pertinent part, that the Secretary of the Military Department concerned (or designee) may correct any election or any change or revocation of an election when the Secretary considers it necessary to correct an administrative error.
9. 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 applicants contention that she should be disenrolled from the SBP and all premiums should be returned to her because she declined participation in the SBP and her husband concurred with her election has been noted and appears to lack merit.
2. The evidence of record clearly shows the applicants spouse received and signed for the SBP information and the concurrence packet on 21 April 2014. While the applicants spouse claims he sent the statement back in April 2014, he has provided no independent evidence to dispute the statement made by the RSO that the information was never returned.
3. The applicant had 5 months to ensure the concurrence statement was completed and returned; when it was not timely received she was automatically enrolled in the SBP for full coverage.
4. There is no error or injustice in this case and no basis to grant her request.
5. However, she is not precluded from exercising her option to withdraw from the SBP with her spouses concurrence during the 1-year period following the second anniversary of receipt of retired pay; however, premiums will not be refunded.
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) AR20140019285
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ABCMR Record of Proceedings (cont) AR20140019285
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