IN THE CASE OF: BOARD DATE: 24 February 2015 DOCKET NUMBER: AR20140008237 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 cancellation of his Survivor Benefit Plan (SBP) coverage. 2. The applicant states: * he was awarded the SBP as part of the agreement in the Sabo versus United States lawsuit * he and his wife decided to terminate the SBP coverage between the 25th and 26th month of coverage * he and his wife are unable to pay the premiums retroactive to 2003 * the appropriate forms were sent to the U.S. Army Human Resources Command, but the Defense Finance Accounting Service (DFAS) has yet to terminate his SBP coverage 3. The applicant provides: * email * Physical Disability Board of Review (PDBR) decisional documents * sworn statement CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 19 July 2001. 2. Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Orders 335-0003, dated 1 December 2003, directed his discharge with disability severance pay effective 10 December 2003. 3. On 10 December 2003, he was honorably discharged with severance pay due to physical disability. 4. Records show he was a participant in the Sabo versus United States lawsuit. 5. On 30 July 2012, Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Orders 212-0638, dated 30 July 2012, revoked Orders 335-0003, dated 1 December 2003, as a result of the Sabo Settlement Agreement, dated 12 August 2011. Orders 212-0638 also placed the applicant on the Temporary Disability Retired List effective 10 December 2003. 6. The applicant's DD Form 2656 (Data for Payment of Retired Personnel) showing his election to participate in the SBP and his elected coverage is not available for review. 7. The applicant provided email showing his attempts to terminate his SBP election. He also provided a sworn statement from his spouse concurring with termination of SBP coverage. 8. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members serving 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 specific circumstances. This law also provided 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 the SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the Retired List. 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 the 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. DISCUSSION AND CONCLUSIONS: 1. As a result of the Sabo Agreement, dated 11 August 2011, the applicant's discharge in 2003 was revoked and he was retroactively placed on the TDRL in 2012 with an effective date of 11 December 2003. 2. Since the applicant's retirement was retroactive, SBP premiums and any interest became due upon his election and were retroactive to his retirement date of 11 December 2003. Further, his 1-year period to terminate his participation expired prior to his placement on the TDRL. His spouse concurs with his decision to terminate SBP as indicated in her notarized statement. 3. As a matter of equity, the applicant's records should be corrected to show he elected not to participate in the SBP, his spouse timely concurred with this election, and officials at DFAS timely processed the request. BOARD VOTE: ____X___ ____X___ ____X___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 the applicant timely completed a DD Form 2656 electing not to participate in the SBP and that his spouse properly concurred with his decision on the same date * showing DFAS timely received and processed the applicant's DD Form 2656 declining the SBP with his spouse's concurrence * reimbursing all premiums already paid by the applicant 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) AR20140008237 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140008237 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1