BOARD DATE:	  23 December 2010

		DOCKET NUMBER:  AR20100013602 


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).

2.  The applicant states that he is medically retired due to being 60 percent disabled.  Therefore, he cannot financially afford to pay the SBP premium.

3.  The applicant provides copy of a withdrawal consent statement from his spouse. 

CONSIDERATION OF EVIDENCE:

1.  The applicant, a medically retired sergeant/E-5, initially enlisted in the Regular Army (RA) on 26 July 1971.  He had two periods of RA service, two breaks in service, and enlisted in the U.S. Army Reserve (USAR) on 7 July 1983.  He had a break in service and reenlisted in the USAR on 25 February 2000.  

2.  The applicant was mobilized in support of Operation Enduring Freedom.  He served on active duty from 7 February 2003 through 26 August 2004.  While on active duty he suffered injuries that initially resulted in him being discharged with disability severance pay.

3.  After action by the Physical Disability Review Board, U.S. Army Physical Disability Agency Order 350-23, dated 16 December 2009, was issued placing the applicant on the TDRL on 27 August 2004.  He was removed from the TDRL on 26 February 2005 and permanently retired with a 60 percent disability evaluation, effective 27 February 2005.  
4.  On 8 February 2010, the applicant completed a DD Form 2656 (Data for Payment of Retired Personnel) with an election of full coverage for spouse and children.  This form shows he married L____ M____-G____ on 26 August 2009.  

5.  In a letter, dated 19 April 2010, the applicant's wife writes that she concurs with the applicant's request to overturn their original coverage election due to financial constraints.  

6.  Public Law 92-425, enacted 21 September 1972 and 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 must be made prior to the effective date of retirement, or coverage defaults to spouse coverage.  

DISCUSSION AND CONCLUSIONS:

1.  Because the applicant was retroactively retired, he was automatically enrolled in the SBP.

2.  Although the applicant completed an SBP election form on 8 February 2010 electing full coverage for spouse and children, on 19 April 2010 his spouse concurred with the applicant to have the election rescinded. 

3.  Because it was a retroactive retirement, it appears the applicant and his current spouse may not have been properly counseled on the cost of the SBP and the effects of the SBP election.  This poor or nonexistent counseling creates an injustice and it is appropriate to correct the record to show the applicant did not elect to participate in the SBP as of the date of retirement.

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 to show the applicant elected not to participate in SBP with his spouse's concurrence, that his election was accepted by the appropriate office as valid, and that he be refunded any and all SBP premiums paid by him.  



      _______ _  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)                                         AR20100013602



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ABCMR Record of Proceedings (cont)                                         AR20100013602



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