IN THE CASE OF:	  

	BOARD DATE:	  10 July 2008

	DOCKET NUMBER:  AR20080005392 


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 correction of his records to show he elected not to participate in the Survivor Benefit Plan (SBP) upon his placement on the Temporary Disability Retired List (TDRL).

2.  The applicant states that he received the DD Form 2656 (Data for Payment of Retired Personnel) in the mail from the U.S. Army Physical Disability Agency (USAPDA) and that he took the form to his U.S. Army Reserve (USAR) unit to be filled out, but no one understood how to complete the form, so he left it blank.  He further adds that he forwarded the DD Form 2656 to the Defense Finance and Accounting Service (DFAS)-London, Kentucky, and that he was not married at the time of his temporary retirement.

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  Undated, blank copy of the back of DD Form 2656-6 (SBP Election Change Certificate).  

	b.  Final Decree of Divorce, dated 9 October 2001.  

	c.  USAPDA Orders D024-19, dated 24 January 2008, TDRL Orders.

	d.  DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 28 December 2007.

	e.  DA Form 18 (Revised Physical Evaluation Board (PEB) Proceedings), dated 21 April 2008.  

4.  On 14 June 2008, by fax, the applicant provided a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 16 March 2005, and the back copy of his DD Form 2656, dated 19 February 2008.

5.  On 16 June 2008, by fax, the applicant provided the front copy of his DD Form 2656, dated 19 February 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show that he enlisted in the USAR for a period of 8 years on 11 July 1989.  He subsequently executed two 6-year reenlistments in the USAR on 16 May 1997 and 9 May 2003.  He held military occupational specialty (MOS) 21H (Construction Engineering) and attained the rank/grade of staff sergeant (SSG)/E-6.  

2.  The applicant’s records show that he and his spouse were divorced on 9 October 2001. 

3.  The applicant's records show that he was ordered to active duty in support of Operation Iraqi Freedom on 7 December 2003 and subsequently served in Iraq from 10 March 2004 to 10 March 2005.  He was honorably released from active duty and reverted back to his USAR status on 16 March 2005.

4.  On 28 December 2007, a PEB convened at Fort Sam Houston, Texas, and determined that the applicant’s medical and physical impairments prevented reasonable performance of the duties required by his grade and military specialty.  The PEB found the applicant physically unfit, recommended a combined disability rating of 60 percent, and placed the applicant on the TDRL on 29 February 2008, with reexamination during July 2009.

5.  On 19 February 2008, the applicant was counseled by an SBP Counselor at Fort Hood, Texas, regarding SBP enrollment.  The applicant completed the DD Form 2656, but did not make an election whether to participate or not participate in the SBP.  Items 26 (Beneficiary Category) and 27 (Level of Coverage) of his DD Form 2656 contain blank entries.  The SBP Counselor (Witness) placed her name in Item 31a, signature in Item 33b, and full address in Items 31d through 31g.  The applicant signed in Item 32a and placed the date “19 February 2008.”
6.  On the date the applicant's retired/retainer pay account was established, DFAS received the applicant's "unchecked" SBP election.  Therefore, DFAS established the applicant’s retired pay account with SBP coverage at the maximum rate, based on Spouse-only coverage, the default SBP election.

6.  An electronic mail (email) from the Army Liaison at the Defense Finance and Accounting Service (DFAS)-Retired Pay, Cleveland, Ohio, on 16 June 2008 indicated that the applicant's account was changed to "child only coverage" on 9 June 2008 and the applicant was issued a credit of the difference in premiums. The Army Liaison also indicated that the applicant submitted a DD Form 2656, dated 19 February 2008, indicating that he elected "child only coverage."

7. 10 USC, section 1448(a)(4)(A) states that an election does not become irrevocable until after the date the person becomes eligible to receive retired pay. 

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.  This Law also provides that every member having a spouse and/or child(ren), who retired/transfers 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.

9.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a one-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.  Reservists who elected an option under the RCSBP will continue to have the Reservist Portion cost deducted from their retired pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show that he elected not to participate in the SBP.

2.  The evidence of record shows that the applicant was divorced on 9 October 2001.  When he was placed on the TDRL, the applicant, in good faith and in the presence of a witness and an SBP counselor, stated that he was single, but has three dependent children.  However, he did not make an election whether to participate in the SBP by failing to place an "x" in the appropriate block on his DD Form 2656.  The witness (counselor) signed the form on the same date certifying the applicant’s election.  

3.  When the applicant's retired/retainer pay account was established, DFAS also established his retired pay account with SBP coverage at the maximum rate, based on Spouse-only coverage, the default SBP election.

4.  However, it also appears that one of two things happened: either the applicant submitted a request to DFAS electing "child only" coverage or DFAS changed the default coverage from "spouse" to "child(ren)" upon realizing the applicant is not married.  Either way, his coverage election was corrected to show "child(ren) coverage" and DFAS reimbursed him of the difference in premium payments.  Therefore, his coverage is correct and no further action is required.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement in this case.  Therefore, he is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



							XXX
       _   _______   ___
       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)                                         AR20080005392



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080005392



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1