IN THE CASE OF:	  

		BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20090018035 


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 to terminate participation in the Survivor Benefit Plan (SBP).

2.  The applicant states he was misinformed on drawing concurrent benefits from Department of Veterans Affairs (VA) and active duty retirement at the same time.

3.  The applicant provides a copy of his DFAS-CL Form 7220/148 (Retiree Account Statement) and a self-authored statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 23 December 1966.  He completed prior service in the Army National Guard and the Regular Army.  He enlisted in the Arkansas Army National Guard on 30 July 1990.

2.  The applicant was ordered to active duty on 12 October 2003 in support of Operation Iraqi Freedom.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he served in Iraq from "23 March 2003" to 6 November 2004, and he was released from active duty on 18 November 2004.

3.  On an unknown date, the applicant was evaluated by a Medical Evaluation Board (MEBD).  The MEBD proceedings are not available.  He was referred to a Physical Evaluation Board (PEB).
4.  In a 23 September 2008 memorandum, the Chief, Operations Division, U.S. Army Physical Disability Agency, Washington, DC, informed the applicant of the following:

   a.  He had been found to have a disability and would be permanently retired with a 70 percent (%) disability rating percentage.

   b.  He must complete enclosure 2, DD Form 2656 (Data for Payment of Retired Personnel) and send it to the Defense Finance and Accounting Service (DFAS).

	c.  If he required assistance, contact a Retirement Services Officer at any major military installation.

	d.  He was encouraged to contact the VA servicing his area to determine what benefits would be available to him.

	e.  He and his authorized family members were entitled to an Identification and Privilege Card.

5.  On 21 October 2008, an informal PEB determined the applicant was physically unfit for Post Traumatic Stress Disorder (PTSD) with major depressive disorder, asthma, and residuals of traumatic brain injury (TBI).  The PEB recommended permanent disability retirement with a combined disability rating of 70 percent.

6.  The applicant’s DD Form 2656 is not available.

7.  On 29 October 2008, the applicant was medically retired from the Army National Guard under the provisions of National Guard Regulation 600-200, paragraph 8-35l(8) by reason of being medically unfit for retention.  On the following day, he was transferred to the Retired Reserve.  At the time of his discharge, he had completed 23 years, 2 months, and 29 days total service for retired pay.

8.  The applicant’s DFAS-CL Form 7220/148 with an effective date of 24 April 2009 shows SBP premiums ($171.32) for spouse and child(ren) coverage were deducted from his retired pay.  The statement indicated he had paid 6 months toward his 360 months of paid-up SBP coverage.  

9.  The applicant provided a self-authored statement that stated the following:

* He fell in the gray area when he was medically retired from the Army and he was misinformed on what he was eligible to receive
* He was a full-time Department of Defense (DOD) civilian technician working for the National Guard and he was called to active duty
* He was injured in Iraq during combat operations
* He was evaluated by the VA and given a 100% disability rating percentage
* He was told he could receive a VA disability rating with an active duty retirement
* He went through an MEBD/PEB and given a medical retirement with a 70% disability rating percentage with 75% being the highest the Army gives
* He would have never elected SBP if he had been informed correctly about drawing both VA benefits and active duty retirement
* His wife is protected through SBP covered from his DOD civilian technician job and the VA
* He now stays home due to his disabilities and his wife left her job to help him
* The SBP debt is now an unnecessary burden

10.  In a 13 July 2010 email, the Board analyst notified the applicant to provide an up-to-date concurrence from his spouse.  His spouse provided a notarized statement, dated 22 July 2010, indicating she concurred with the applicant's decision to terminate his participation in the SBP.

11.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  The member may elect not to participate (with their spouse’s concurrence, if required), but the election must be made before the first day for which the member is eligible to receive retired pay.

12.  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.  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.  The applicant was medically retired on 29 October 2008.  His DD Form 2656 is not available; however, his DFAS-CL Form 7220/148 shows SBP premiums for spouse and child(ren) coverage are being deducted from his retired pay.

2.  The applicant's spouse provided a notarized statement, dated 22 July 2010, concurring with his decision to cancel enrollment in the SBP.  

3.  It appears it was the applicant's and his spouse’s intent to decline participation in the SBP.  Therefore, as a matter of equity, it would be appropriate to amend the applicant’s DD Form 2656 to show he declined to participate in the SBP in a timely manner and to refund him any paid premiums.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X____  ___X____  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 the DD Form 2656 of the individual concerned be amended to show he and his spouse signed the form in a timely manner declining to participate in the SBP and it was received and accepted for processing by the appropriate office, thus resulting in him never being enrolled in the SBP and being due a refund of all SBP premiums paid.




      _______ _   _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)                                         AR20090018035





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ABCMR Record of Proceedings (cont)                                         AR20090018035



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