IN THE CASE OF:	  

		BOARD DATE:	  27 October 2010

		DOCKET NUMBER:  AR20100011825 


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 application was filed by the legal guardian of a medically retired Soldier.  Hereinafter, the term "applicant" refers to the medically retired Soldier.

2.  The applicant requests his military records be corrected to show he declined enrollment in the Survivor Benefit Plan (SBP).

3.  The applicant defers his statement to counsel.

4.  The applicant provides a copy of a Durable General Power of Attorney executed on 24 June 2008 appointing his wife to act on his behalf.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's military records be corrected to show he declined enrollment in the SBP.

2.  Counsel states the Defense Finance and Accounting Service (DFAS) did not recognize the applicant's election under the SBP as his wife signed the member certification statement on the DD Form 2656 (Data for Payment of Retired Personnel).  The applicant's wife relied on counseling from Department of Defense (DOD) personnel when she signed the DD Form 2656 pursuant to the applicant's power of attorney.  Counsel states DFAS's failure to recognize the power of attorney is erroneous and unjust.

3.  Counsel states the applicant was severely injured by a mortar blast on 11 July 2007 in Iraq.  The Department of Veterans Affairs (VA) has subsequently rated him as 100 per cent disabled and he requires regular aid and attendance.  Counsel states the VA determined him to be incompetent to handle his own affairs.  Therefore, the applicant's wife is his primary caregiver and she is his court-appointed legal guardian.  They have a 2-year old daughter and his VA compensation is their sole source of income.  

4.  Counsel states the applicant's wife obtained the durable power of attorney to enable her to conduct the family's business affairs.  The applicant and his wife worried that his signature on important documents could be challenged on competency grounds based on his considerable physical and cognitive disabilities.  The applicant's wife has used the durable power of attorney successfully to execute DOD documents related to his medical care, his Physical Evaluation Board (PEB) evaluation, and his discharge from the Army, among other things.

5.  Counsel states that on 7 August 2009, the applicant's wife was made his legal guardian by order of the Juneau County Circuit Court of the State of Wisconsin.  As his guardian, his wife contacted DFAS again on two occasions and she was told there was nothing DFAS could do administratively and that she could only obtain relief through the ABCMR.

6.  Counsel states the applicant and his wife were incorrectly counseled concerning the durable power of attorney and their SBP election.  In addition, DFAS did not notify his wife the SBP election was invalid until 3 months after he had been placed on the Retired List.

7.  Counsel provides a seven-page brief with seven exhibits.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned a second lieutenant in the Regular Army on 15 May 2006.

2.  On 24 June 2008, the applicant executed a Durable General Power of Attorney appointing his wife to act on his behalf.  Paragraph (m) states she is permitted to act for him in all matters which affect his right to government benefits and assistance, including without limitation Social Security, Medicare, Medicaid, qualified state tuition programs, and other governmental benefits and benefits relating to civil or military service.

3.  On 17 December 2008, an informal PEB found the applicant physically unfit for nine medical conditions and recommended a combined disability rating of 
100 percent.  The PEB stated the applicant was physically and psychiatrically injured on 11 July 2007 by a mortar blast and shrapnel while serving in Iraq during a period of war.  The PEB recommended his disposition as permanent disability retirement.  The PEB did not address the applicant's competency.

4.  Orders, dated 9 February 2009, released him from assignment and duty on 
27 March 2009 and placed him on the Retired List on 28 March 2009.  His retired rank was first lieutenant.  Orders dated 25 February 2009 changed his retired rank to captain.

5.  On 24 February 2009, the applicant and his wife submitted his DD Form 2656. The election form indicates the applicant elected not to participate in the SBP.  The form is signed in the member signature block by his wife and indicates she was signing using her durable power of attorney.  She then signed in the block designated for spouse and her signature is notarized.

6.  A VA Rating Decision, dated 20 April 2009, awarded the applicant a 100 percent disability rating and determined his disability was permanent and total.  The decision also indicated a finding of competency was proposed.  However, a final competency determination is not a part of the records that were submitted.

7.  A letter, dated 8 May 2009, from DFAS provided the applicant a summary of his pay account.  On page 2 of the letter DFAS indicated they had not received his SBP election certificate and therefore provided automatic full SBP coverage effective 28 March 2009.

8.  An undated letter from DFAS shows the applicant was notified a person with general or durable power of attorney cannot make any pay related account changes for a retiree/annuitant regardless of his or her competency status.

9.  On 7 August 2009, the applicant's wife was appointed the applicant's legal guardian by order of the Juneau County Circuit Court of the State of Wisconsin.  

10.  Counsel submitted a declaration of the applicant's wife.  She states that she and the applicant decided not to participate in SBP.  She asked the transition counselor if she could sign for the applicant using her power of attorney.  She was told she could and she then signed the form as well as completing the spousal portion and had it notarized.  She contacted Walter Reed Army Medical Center (WRAMC) the following day to confirm the DD Form 2656 was in order and she was told the form and been "accepted."  She states the DD Form 2656 was submitted over a month before it was due and had she been informed it was improper or in error she would have resubmitted the form.

11.  References:

	a.  Department of Defense Instruction (DODI) 1332.42, in effect at the time, provided the responsibilities and procedures for administering the Survivor Annuity Program.

		(1)  Paragraph E3.2.1 stated a member entitled to retired pay based on active service who had a spouse or dependent child was considered a participant having maximum SBP coverage unless the member, with spousal concurrence if married, elected less-than-maximum spouse coverage, child-only coverage, or not to participate in the program.  Unless such election was made prior to the first day of entitlement to retired pay, automatic coverage for maximum spouse or spouse and child coverage was to be entered.  An election under this paragraph was irrevocable unless otherwise provided by law if not revoked before the date on which the person first became entitled to retired pay.

		(2)  Paragraph E3.5.1 stated written spousal concurrence was required when the member elected to decline coverage or provide the spouse with less than the maximum SBP coverage available, to include electing child-only coverage.  Office of the Under Secretary of Defense memorandum, dated 19 December 2007, provided an interim change that requires spousal consent be notarized in the case of a member who declines or elects less than full SBP coverage upon initial eligibility to elect such coverage.  The effective date of this change is for all SBP elections made on or after 1 May 2008.

		(3)  Paragraph E3.8 stated the Secretary concerned may make an SBP election on behalf of a member who is declared incompetent by:

* medical officers of the Armed Force concerned
* the VA
* a court of competent jurisdiction

	b.  DOD Financial Management Regulation 7000.14-R, Volume 7B, 
Chapter 43 (Survivor Benefit Plan—Elections and Election Changes), paragraph 430303D, states the member must sign and date the SBP election. Two impartial persons must witness a document signed by an “X.”  NOTE: An election made on behalf of the member through a power of attorney is not valid.  Such an election is not binding and is without force or effect of law.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he declined participation in the SBP.

2.  Over a month before his date of retirement the applicant and his wife submitted his DD Form 2656 electing to decline to participate in SBP.  Trusting in the counseling provided by DOD personnel his wife signed the form for him using her power of attorney.  

3.  The first letter the applicant received from DFAS indicated his SBP election had not been sent in until over a month after his retirement.  DFAS sent a second letter 3 months after his retirement that indicated a person with a general or durable power of attorney cannot make any pay related changes for a retiree/annuitant.

4.  DOD Financial Management Regulation 7000.14-R does state that an SBP election made on behalf of the member through a power of attorney is not valid.  However, the applicant's wife was advised her power of attorney was good by DOD personnel and DFAS didn't inform her it wasn't good for pay changes 
until 3 months after he was retired.

5.  It is clear the applicant and his wife did not desire to participate in SBP.  The DD Form 2656 was submitted a month before he retired.  If she had been notified it was in error there was plenty of time before his retirement to obtain a corrected form.

6.  The available evidence indicates DOD personnel's lack of knowledge concerning SBP elections and powers of attorney and DFAS's failure to notify the applicant his DD Form 2656 had been improperly completed caused a default election against the applicant's wishes.

7.  Therefore, as a matter of justice, it would be appropriate to change the applicant's records to show that on 24 February 2009 he declined participation in the SBP.  It would also be appropriate to return any premiums previously collected to the applicant.


BOARD VOTE:

___X____  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 by changing his DD Form 2656 to show that on 24 February 2009 he declined participation in the SBP, with a valid spousal concurrence.

2.  DFAS should make any adjustments required based on the above correction and return any premiums previously collected.



      _______ _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)                                         AR20100011825



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ABCMR Record of Proceedings (cont)                                         AR20100011825



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