RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-01425
				INDEX CODE:  137.00

				COUNSEL:  None

				HEARING DESIRED:  NO

MANADATORY CASE COMPLETION DATE:  10 NOVEMBER 2008

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APPLICANT REQUESTS THAT:

He be allowed to withdraw from the Survivor Benefit Plan (SBP) and receive recoupment for premiums he already paid.

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APPLICANT CONTENDS THAT:

He declined SBP prior to his retirement.  His wife (who was separated from him) nonconcurred in the SBP election, but later agreed to decline spouse coverage.

In support of his appeal the applicant submitted a statement from his wife, and documentation associated with his retirement processing.

Applicant's complete submission, with attachments, is attached at Exhibit A.

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STATEMENT OF FACTS:

The applicant and his spouse were married on 18 September 1993.  He was briefed on the SBP on 3 August 2003 and elected to decline coverage.  On 29 August 2006, his spouse was counseled on the options and effects of the SBP and did not concur in the applicant’s election not to participate in the SBP.  The Defense Finance and Accounting Service–Cleveland (DFAS–CL) in accordance with law established automatic spouse and child coverage based on full retired pay following the applicant’s 1 November 2006 retirement.

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AIR FORCE EVALUATION:

AFPC/DPPRT recommends the requested relief be denied.   DPPRT states that Public Law (PL) 99-145 requires spouses of married servicemembers to concur in writing, prior to the servicemember’s retirement, in SBP elections that provide less than full spouse coverage.  If the spouse nonconurs with the election, coverage will be established on the spouse’s behalf by operation of law.  PL 105-85, effective 18 November 1997, provides for a one-year period beginning on the 25th month following commencement of retired pay, during which the SBP participants may choose to voluntarily discontinue their participation.  In order for servicemembers to disenroll, the servicemember has to submit a DD Form 2656-2, SBP Termination Request to the DFAS–CL with the spouses’ notarized consent.  Withdrawals are effective the month following DAFS–CL’s receipt of a valid request.  A request is considered valid if it postmarked no later than the member’s third year anniversary of receiving retired pay.  If the retired servicemember fails to exercise the disenrollment option during the one-year eligibility period the SBP election is considered permanent and is irrevocable as long as the beneficiary remains eligible.

DPPRT further states the applicant did not provide any evidence that his spouse was improperly counseled on the SBP.  No evidence was provided to show that the options were not clearly presented and explained to her and she could have elected to concur in the applicant’s election.  The SBP counselor’s role is to brief and assist the servicemember and spouse in making an SBP election, it is ultimately each person’s responsibility to comply with the statutory requirement of the law.  Based on her statement, she admits that she did not want to decline the SBP until the applicant informed her he had obtained life insurance.  Her decision to change her mind came after the applicant’s retirement date.  Approval of this request would provide the applicant an opportunity not afforded other retired servicemembers and is not justified.  On 1 November 2008, the applicant may exercise his option under PL 105-85 to terminate SBP participation.

AFPC/DPPRT evaluation is attached at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to the applicant on 18 May 2007, for review and response.  As of this date, no response has been received by this office.

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THE BOARD CONCLUDES THAT:

1.	The applicant has exhausted all remedies provided by existing law or regulations.

2.	The application was timely filed.

3.	Insufficient relevant evidence has been presented to demonstrate the existence of an error or an injustice.  We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinion and the recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  We note that under the provisions of Public Law 105-85, the applicant will have an opportunity to disenroll from SBP commencing 1 November 2008, provided he obtains his spouse’s written concurrence.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered AFBCMR Docket Number BC-2007-01425 in Executive Session on 26 September 2007, under the provisions of AFI 36‑2603:

The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 4 May 07, w/atchs.
	Exhibit B.	Letter, HQ AFPC/DPPRT, dated 14 May 07.
	Exhibit C.	Letter, SAF/MRBR, dated 18 May 07.