IN THE CASE OF:
BOARD DATE: 14 July 2011
DOCKET NUMBER: AR20110000537
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 termination of his participation in the Survivor Benefit Plan (SBP) and reimbursement of all premiums paid.
2. The applicant states he did not want to participate in the SBP; however, he was forced to sign for the SBP because his wife was not there to sign the form and the Army would not discharge him until he did.
3. The applicant provides a copy of a bill from the Defense Finance and Accounting Service (DFAS) notifying him of overdue premiums due for SBP coverage.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the U.S. Army Reserve on 23 October 2002. He served in Iraq from 20 February 2004 to 25 February 2005 and on 26 October 2005 he was transferred to the Arizona Army National Guard.
2. He enlisted in the Regular Army on 3 January 2007 in pay grade E-5. He deployed to Afghanistan from 19 February 2007 to 14 March 2008.
3. On 3 December 2008, a physical evaluation board (PEB) convened at Fort Lewis, Washington, and determined he was physically unfit and recommended that he be placed on the Temporary Disability Retired List (TDRL) with a 70-percent disability rating.
4. On 4 December 2008, the applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.
5. On 23 December 2008, while at Fort Knox, Kentucky, the applicant signed a DD Form 2656 (Data for Payment of Retired Personnel) in which he elected full spouse and children coverage under the SBP.
6. On 5 January 2009, the applicant was placed on the TDRL in pay grade E-5 with a 70-percent disability rating. He completed 3 years, 6 months, and 9 days of active service.
7. Public Law 99-145, enacted on 8 November 1985 but effective 1 March 1986, required a spouse's written concurrence for a retiring member's election that provided less than maximum spouse coverage.
8. Title 10, U.S. Code, section 1448, provides that effective 1 March 1986, a married member is enrolled with spouse coverage on full retired pay at the time of retirement unless that spouse has concurred in writing to another election requested by the member pursuant to Department of Defense Financial Management Regulation, volume 7b, chapter 43. When the spouse's concurrence is required, the signature indicating concurrence must be corroborated by one or more witnesses.
9. Public Law 105-85, enacted on 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 the SBP. The spouse's concurrence is required. No premiums will be refunded to those who opt to disenroll.
DISCUSSION AND CONCLUSIONS:
1. While the sincerity of the applicant's claim that he was told he would not be processed for discharge unless he elected full spouse and children coverage in the absence of his spouse's concurrence with an election that provided less than maximum spouse coverage is not in doubt, the law does, in fact, require that a spouse's concurrence be obtained if the service member elects less than full coverage.
2. While completion of an SBP election is part of the process for Soldiers being retired, if a Soldier fails to make an election, he or she is automatically enrolled for full coverage under the law. Accordingly, an individual's separation is not delayed simply because an election is not made.
3. The applicant has the option to disenroll from the SBP during the 1-year period following the second anniversary of receipt of his retired pay. He is currently in that window and may terminate his participation with his spouse's concurrence by applying to DFAS at this time. No premiums will be refunded. His termination window closes in December 2011.
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 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) AR20110000537
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ABCMR Record of Proceedings (cont) AR20110000537
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