IN THE CASE OF:	  

		BOARD DATE:	  22 September 2015

		DOCKET NUMBER:  AR20150001913 


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 reimbursement of all premiums collected. 

2.  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 the name of his former spouse on the form because the form states this section must be completed regardless of SBP election
* he thought he needed to place his former spouse's name in that block even though they were divorced and no SBP is mentioned in their divorce decree
* he also placed an "X" in the block pertaining to election of former spouse SBP 
* he wrote to the Defense Finance and Accounting Service (DFAS) to cancel SBP and he stated that he elected not to participate in SBP
* DFAS informed him that he did not properly initial the block where he wrote cancel and they could not make the correction 
3.  The applicant provides his divorce decree and retirement orders. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 16 October 1946.  He and Betty, his former spouse, were married on 13 May 1967. 

2.  Having had prior service, the applicant enlisted in the Iowa Army National Guard (IAARNG) on 2 January 1979 and in the U.S. Army Reserve (USAR) on 19 November 1979.  

3.  He served through multiple extensions or reenlistments in a variety of USAR assignments and he attained the rank/grade of master sergeant (MSG)/E-8. 

4.  He was honorably discharged from the USAR on 17 September 1997.  His records are void of discharge orders/orders transferring him to the Retired Reserve, or a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 

5.  He provides a copy of his divorce decree, dated 1 January 2013, together with an Order for Division of Uniformed Services Retirement System Benefits.  It shows his former spouse Betty was awarded 50 percent of his disposable military retired pay as of 11 January 2013.  It does not address the SBP. 

6.  On 18 September 2013, the applicant completed a DD Form 2656.  He indicated that he was single but listed in item 22 (Spouse) the name of his spouse as "Betty" together with her date of birth, social security number, date of marriage, and place of marriage.  He also:

* Placed an "X" in item 26(e) (Beneficiary Category) to elect coverage for former spouse as well as another "X" in item 26(g) indicating he elected not to participate in SBP and that he did not have eligible dependents under the plan 
* Authenticated this form with his signature; a witness also placed her name and authenticated this form with her signature 

7.  On 26 September 2013, the U.S. Army Human Resources Command published Orders C09-397038 placing him on the Retired List in his retired rank of MSG effective 16 October 2006, his 60th birthday. 

8.  On 18 March 2014, DFAS wrote the applicant and informed him that when he completed his DD Form 2656, before he retired, he indicated his former spouse was to be covered under SBP.  DFAS also received a request not to cover his former spouse.  Since his DD Form 2656 was used to make the initial SBP election, in order to correct this election within a year of his initial retirement date, he must contact his Retirement Services Officer to request an administrative correction.  

9.  There is no evidence the applicant contacted a local Retirement Services Officer or requested an administrative correction. 

10.  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/transferred 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.

11.  Public Law 95-397, the Reserve Component SBP, 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:

* Option A - elect to decline enrollment and choose at age 60 whether to start SBP participation
* Option 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
* Option C - elect that a beneficiary receive an annuity immediately upon their death if before age 60

12.  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.

13.  Public Law 106-398, dated 30 October 2000, requires that upon receipt of the 20-year letter, a qualified Reserve Component member who is married will automatically be enrolled in the RCSBP under option C (spouse and children coverage) based on the full amount unless the spouse's concurrence is provided to allow one of the following elections:

* option A (defer enrollment to age 60)
* option B (enroll and pay annuity when member would have been age 60 for spouse or spouse and children at less than maximum amount or enroll children only)
* option C (enroll and pay an annuity immediately upon death, but enroll spouse or spouse and children at less than maximum amount or enroll children only)

14.  Title 10, U.S. Code, section 1448 states in:

	a.  Sub-paragraph (b)(3)(A)(i) that a person who is a participant in the Plan and is providing coverage for a spouse or a spouse and child (even though there is no beneficiary currently eligible for such coverage), and who has a former spouse who was not that person’s former spouse when that person became eligible to participate in the Plan, may elect to provide an annuity to that former spouse.  

	b.  Sub-paragraph (b)(3)(A)(ii) states that any such election terminates any previous coverage under the Plan.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant served in multiple components of the Army and he was ultimately discharged on 17 September 1997.  He was married to Betty but he was never issued a 20-Year Letter and thus he never had the opportunity to make a Reserve Component SBP election.  Even when he turned 60, the Army did not issue him a 20-Year Letter or retirement orders, presumably because his retirement points were not properly calculated. 

2.  He and Betty were divorced in January 2013.  Their divorce decree is silent with respect to SBP.  Soon after, he appears to have applied for retired pay.  With his application, he completed a DD Form 2656 in September 2013 and although he had been divorced, for some reason he listed Betty as his spouse and elected SBP coverage for her as the former spouse.  He also marked this very same form with "X" in the block that stated he did not want to participate in SBP. 

3.  It is clear the applicant neither knew how to complete this form nor did he understand the implications of his election.  By marking the wrong block, he is now enrolled in a program that he did not want and is paying premiums for coverage that he is not legally obligated to provide.  It is equally clear that the multiple errors committed by the Army (miscalculation of points, not issuing a
20-Year Letter, and delay in retirement orders) significantly contributed to the situation he is in. 
4.  The Board is not empowered to terminate an applicant's SBP any time.  There are laws that govern this program.  By law retirees have a 1-year period beginning on the second anniversary of the date on which their retired pay started to withdraw from SBP.  If married, the spouse's concurrence is required.  No premiums will be refunded to those who opt to disenroll.  

5.  However, the Board is empowered to correct the applicant's records to show when he completed his DD Form 2656 on 18 September 2013, he elected not to participate in SBP and his election was timely received, accepted, and processed by DFAS.  Therefore, as a matter of equity, the applicant should have his records corrected as such. 

BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* showing he completed a DD Form 2656 on 18 September 2013 and elected not to participate in the SBP
* showing DFAS timely received, accepted, and processed his DD Form 2656 
* if applicable, DFAS reimbursing the applicant all premiums paid as a result of this correction 



      ___________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)                                         AR20150001913



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ABCMR Record of Proceedings (cont)                                         AR20150001913



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