IN THE CASE OF:	  

		BOARD DATE:	  15 January 2015

		DOCKET NUMBER:  AR20140008512 


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 enrollment in the Survivor Benefit Program (SBP) and funds he already invested in the SBP be returned.

2.  The applicant states:

	a.  He and his spouse request they be removed from the SBP.  They spoke to the Fort Bliss, TX, SBP coordinator and received information that he and his spouse were not aware of.  He was informed that regardless of how much he had invested into the SBP toward the 360 month requirement, upon the death of his spouse no funds would be returned to him no matter how much money or how many months he paid into it.  At this time, he and his spouse highly regard the SBP as non-beneficial to their current or future financial goals.

	b.  He is not implying this was not explained to either of them in 2008 when he retired from the Army after 30 years of service.  With the pressures of transitioning to civilian life after such a long career, he may not have listened as astutely to the SBP briefer as expected.  He has several financial investments; however, none of them require a 100 percent retainer fee for early withdrawal or termination from the program.  He was also informed that he could have withdrawn from the SBP at the 2-year period.  His question was did anyone from the SBP send him a letter informing him or reminding him of the milestone and the response he got was no.

	c.  At the 2 year period, he had invested $7,877.72 into the SBP, currently at 64 months it is $21,000.92, and at 360 months he will have invested $120,179.80.  During any of this time, if his spouse were to pass away not one cent would be returned to him.  He fully understands that SBP is designed to assist the spouse and family in the event of the death of the military member.  It is a good program for some but not for all.  Additionally, to be told he can never get out of the program after the 2-year period without divorcing and that at any point upon the death of his spouse none of the investment funds would be returned to him is not beneficial to the military member.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), DD Form 2656 (Data for Payment of Retired Personnel), a notarized statement, marriage certificate, and Defense Finance and Accounting Service (DFAS) Form 7220 (Retiree Account Statement).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted n the Regular Army on 23 August 1978.  He served through multiple reenlistments and/or extensions and attained the rank/grade of sergeant major (SGM)/E-9 on 1 April 1999.  He and his spouse, O______, were married on 16 April 1999.

3.  In conjunction with his upcoming retirement, he completed a DD Form 2656 on 21 April 2008 wherein he indicated he was married to O_______ and they had two dependent children, born on 3 March 1987 and 13 January 1993, respectively.  He elected SBP coverage for spouse and children based on the full gross amount.

4.  He was honorably retired on 31 August 2008 in the rank of SGM and he was placed on the Retired List on 1 September 2008.  He completed 30 years and 8 days of creditable active service.  
5.  There is also no indication he submitted a request to DFAS within 1 year after the second anniversary of the commencement of his retired pay to withdraw from the SBP.

6.  He provides a DFAS Retiree Account Statement, dated 3 December 2013, wherein it shows he currently has spouse and child SBP coverage.  It also shows that effective 31 December 2013 his monthly SBP costs would increase from $323.44 to $328.28; the spouse cost was $327.93 and the child cost was $.35.  

7.  He provides a notarized statement, dated 17 February 2014, wherein his spouse O_____ stated she concurred with the applicant's request to terminate participation in the SBP and that she understood the decision would be irrevocable.

8.  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.

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.  

10.  Public Law 105-261, enacted 17 October 1998, established paid-up coverage under the SBP.  Effective 1 October 2008, no reduction may be made in the retired pay of a participant in the SBP for any month after the later of :  (1) the 360th month for which the participant’s retired pay is reduced; or (2) the month during which the participant attains age 70.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms at the time of the applicant’s retirement in 2008, he was married and had two dependent children.  He elected SBP spouse and children coverage and the December 2013 Retiree Account Statement he provided shows he currently maintains SBP coverage for spouse and one child.

2.  Notwithstanding his contention that the SBP is not a viable investment plan for him, the SPB is not an investment plan.  At any time during the period of coverage, if a retiree with SBP spouse and child coverage were to die, his family would receive an SBP annuity.  Therefore, even in circumstances when it is valid to terminate coverage, no SBP costs are reimbursed.

3.  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 retired on 1 September 2008, there is no evidence that shows he requested to withdraw from the SBP in the required timeframe.

4.  In view of the foregoing, 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)                                         AR20140008512





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140008512



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1