IN THE CASE OF:	

		BOARD DATE:	  23 September 2008

		DOCKET NUMBER:  AR20080012794 


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, in effect, that his Reserve Component Survivor Benefit Plan (RCSBP) coverage be cancelled.

2.  The applicant states, in effect, that he was never given the full explanation of SBP and believes that it was an injustice to him to start SBP because of the lack of time to make a decision.  He states that he was not provided the proper explanation and he was not in the proper frame of mind given the stress of separation from the service.

3.  The applicant provides a copy of his retirement orders; a copy of his NGB (National Guard Bureau) Form 22 (Report of Separation and Record of Service); and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the New York Army National Guard (NYARNG) on 5 March 1983.  He was born on 14 September 1965.  He continued to serve through a series of continuous reenlistments.  He was promoted to staff sergeant (SSG/E-6) effective 30 September 2003.

2.  The applicant's MEB (Medical Evaluation Board) and original/first PEB (Physical Evaluation Board) are unavailable for review. 

3.  On 17 January 2007, the applicant completed a DD Form 2656 (Data for Payment of Retired Personnel).  He indicated that he was married and had three dependent children.  In Section IX- SBP Election, of his DD Form 2656, he elected coverage for spouse and children and elected coverage based on full gross pay.  The application was signed by the applicant, and was witnessed and notarized by proper authorities.  

4.  The applicant was honorably released from active duty on 19 January 2007, under the provisions of Army Regulation 635-40, paragraph 4-24b(2), for disability, temporary, in the pay grade of E-6.  He was placed on the Temporary Disability Retired List (TDRL) effective 20 January 2007, by reason of temporary disability.    

5.  On 19 January 2007, an NGB (National Guard Bureau) Form 22 was prepared which transferred the applicant to the United State Army Reserve (USAR) Control Group (Retired).  He had completed 23 years, 10 months, and 15 days of qualifying service for retired pay.

6.  On 10 December 2007, the applicant's case was considered by an informal PEB.  He was diagnosed as having Posttraumatic Stress Disorder (PTSD), chronic back pain, radiculopathy, and chronic neck pain.  The PEB found the applicant unfit and recommended a combined rating of 30 percent and that he be placed on the TDRL.  On 17 December 2007, the applicant concurred with the results of the PEB and waived a formal hearing of his case.   

7.  The applicant was removed from the TDRL and was placed on the Permanent Retired List, effective 16 January 2008, in the pay grade E-6.

8.  The applicant provided a copy of his Retiree Account Statement (SBP/RSFPP [Retired Serviceman's Family Protection Plan] (Premium Bill), for the month of June 2007.  It indicated an SBP cost per month of $96.09 which included spouse cost of $94.97 and child cost of $1.12. 

9.  An ABCMR staff analyst requested that the applicant clarify whether his spouse had concurred with his request to withdraw from the SBP.  The applicant's spouse completed a notarized statement on 12 May 2008 concurring with the applicant's request to withdraw from the SBP.

10.  On 20 May 2008, DFAS informed this agency by email that the applicant owes $993.98 in back premiums.



11.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Elections are made by category, not by name, and are irrevocable except as provided for by law.

DISCUSSION AND CONCLUSIONS:

1.  The applicant alleges, in effect, that he was never given a full explanation of SBP and believes that it was an injustice for him to start SBP because of the lack of time to make a decision.  

2.  The evidence shows that the applicant completed an SBP Election Certificate, DD Form 2656, on 17 January 2007, two days prior to placement on the TDRL.  He indicated at that time that he was married and had three dependent children, elected spouse and children coverage, and elected coverage based on full retired pay.  

3. The applicant should have elected not to participate prior to his placement on the TDRL. 

4.  The applicant’s Retiree Account Statement shows a monthly deduction of $96.09 for SBP costs (spouse and child).  DFAS informed this agency that the applicant owed $993.98 in back premiums.

5.  The applicant contends, in effect, that he was not provided the proper explanation and he was not in the proper frame of mind given the stress of separation from the service.  He now wishes to cancel his election.  There is no specific form to be used when requesting cancellation of SBP and the applicant has applied to this Board for relief. 

6.  The applicant's spouse submitted a written statement which was notarized on 12 May 2008 concurring with the applicant's election not to participate in SBP.

7.  The SBP is, at base level, an insurance program that relies on the premiums paid and the risk taken by those members who elect to participate.  For these reasons, entry into and exit from the program are tightly controlled and must be applied consistently.  The applicant is no different than other SBP participants who, for cost or other reasons, decide that the program is not in their best interests.  For these participants, the law provides an out.  Under Title 10, United States Code, Section 1448a, a retiree may opt out of the SBP during the year 

following the second year of their receipt of retired pay.  The applicant has not provided any facts that would warrant different treatment in his case.  His PEB indicates that, despite his diagnosis of PTSD he was capable of making his own medical and legal decisions.  The applicant was an E-6 with 22 years of service.  Despite his medical condition, there is nothing in the record to indicate that he was unable to seek advice or assistance from a retiree services officer or other Army official familiar with the SBP.  For these reasons, relief is not appropriate in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  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.



      _________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)                                         AR20080012794



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ABCMR Record of Proceedings (cont)                                         AR20080012794



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