IN THE CASE OF:	  

		BOARD DATE:	  21 September 2011

		DOCKET NUMBER:  AR20110000971 


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).  He also request reimbursement of all premiums that have been collected.

2.  The applicant states, in effect, that the Department of Defense Physical Disability Board of Review (DoD PDBR) recently decided to grant him a permanent disability retirement with a combined disability rating of 50%.  He contends that he was not initially provided a DD Form 2656 (Data for Payment of Retired Personnel) or afforded an opportunity to make an SBP election.  He was unaware of the fact that he was enrolled in SBP until he began receiving SBP/Retired Serviceman's Family Protection Plan (RSFPP) Premium Bills/ statements from the Defense Finance and Accounting Service (DFAS).

3.  When he received his first Retiree Account Statement (RAS) it showed he was enrolled in the SBP for full spouse coverage and that he had incurred a debt in excess of $3,000 for retroactive SBP premiums.  As soon as this error was brought to his attention he contacted DFAS for an explanation.  Then he and his spouse completed a DD Form 2656 wherein they elected not to participate in the SBP.  This form was signed by him and his spouse and the form was notarized.  He concludes that they did as they were instructed.  He should not be penalized for what appears to be an error committed by DFAS. 




4.  The applicant provides:

* A self-authored statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Approval letter from the DoD PDBR
* Two SBP/RSFPP Premium Bills
* RAS
* DD Form 2656

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 10 September 1997 and held military occupational specialty 13B (Cannon Crewmember).  On 29 July 2004 he was honorably discharged due to disability with entitlement to severance pay based upon a 10% disability rating.  At the time of discharge he held the rank/grade of corporal/E-4.  In view of the fact that he was not retiring at the time, he was not afforded pre-separation counseling on the SBP.  His records show he married his spouse, J____y, on
23 May 2000.

2.  The Army Review Board Agency Case Tracking System (ACTS) contains a Record of Proceedings which shows he submitted an application to the DoD PDBR on 26 February 2010 requesting reevaluation of his medical condition at the time of discharge. 

3.  On 20 August 2010, the Deputy Assistant Secretary of the Army (DASA) Review Boards informed the Commander of the U.S. Army Physical Disability Agency (USAPDA) that the applicant's DoD PDBR request was approved.  As a result, it was directed that the applicant was to be constructively placed on the Temporary Disability Retired List (TDRL) for 6 months with a 50% disability rating, effective the date of his original medical separation for disability with severance pay, following this 6 month period his separation action would be recharacterized to a permanent disability retirement with a combined disability rating of 50%.  The DASA directed that all Department of the Army records of the applicant be corrected accordingly no later than 120 days from the date of this memorandum (17 December 2010) by:

	a.  Providing a correction to the applicant's separation document (DD Form 214) showing that he was separated by reason of temporary disability effective the date of the original medical separation for disability with severance pay.


	b.  Providing orders showing the applicant was retired with a permanent disability effective the day following the 6 month TDRL period.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, provide 50% retired pay for the constructive temporary disability retired 6 month period effective the date of the applicant's original medical separation and then payment of permanent disability retired pay at 50% effective the day following the 6 month TDRL period.

	d.  Affording the individual the opportunity to elect SBP and medical TRICARE retiree options.

4.  On 20 August 2010, the DASA (Review Boards) informed the applicant of the aforementioned approval of his request, the corrections that would be made to his service records, and that the DoD PDBR had been forwarded to the USAPDA and DFAS for implementation.  He was also informed that these agencies would provide him an official notification by mail as soon as the above corrections were made and he would be provided information on his retirement benefits.  He was also advised that due to the large number of cases in process, it could be several months before he received notification that the corrections were completed and his pay had been adjusted.

5.  The applicant provides two SBP/RSFF Premium Bills (for November and December 2010) and an RAS (for December 2010) which show DFAS enrolled him in the SBP retroactive to 6 months following his discharge (+/- February 2005) and imposed a debt for SBP premiums for the period of February 2005 to October 2010 in the amount of $3,016.48.

	a.  In November 2010, his debt increased to $3,060.00 based on the addition of a monthly premium charge of $43.52.

	b.  In December 2010, his debt increased to $3,118.42 based on the addition of a monthly premium charge of $43.52 and an interest charge of $14.60.

6.  The applicant provides a DD Form 2656 which shows he and his spouse elected not to participate in the SBP on 3 January 2011.  This form bears the names and signatures of the applicant, his spouse, and a notary public. 

7.  On 28 April 2011, a representative of DFAS confirmed they had no record of receiving an SBP election form from the applicant.



8.  The applicant's Official Military Personnel File (OMPF) and ACTS are void of:

* the DoD PDBR Record of Proceedings
* TDRL orders
* a revised DD Form 214
* Permanent disability retirement orders
* a DD Form 2656 or any other form of SBP election

9.  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 election must be made prior to the effective date of retirement or else coverage automatically defaults to spouse coverage, if applicable.

10.  Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse’s written concurrence for a retiring member’s election that provides less than the maximum spouse coverage.

11.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a 1-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 contends his records should be corrected to show he elected not to participate in the SBP and he should be reimbursed any premiums he has paid.

2.  On 20 August 2010, the DASA (Review Boards) informed the Commander of the USAPDA that the applicant's DoD PDBR request was approved and directed that corrective action be taken accordingly no later than 17 December 2010.  

3.  Both the applicant's OMPF and ACTS are void of the DoD PDBR Record of Proceedings or any evidence showing corrective action was taken in the form of providing him: 

* TDRL orders
* a revised DD Form 214
* Permanent disability retirement orders
* a DD Form 2656 or any other form of SBP election

4.  The available evidence indicates DFAS acted immediately to place the applicant into a retired status and in the absence of an SBP election being made prior to the effective date of retirement SBP coverage automatically defaulted to full spouse coverage retroactive to 6 months following his original discharge date. DFAS then billed the applicant for nearly 6 years of SBP premiums.  When in fact, had he died any time prior to approval of the DoD PDBR Record of Proceedings, his spouse would not have been entitled to SBP because he was not retired.

5.  The evidence of record shows that shortly after discovery of this discrepancy, the applicant submitted a DD Form 2656 wherein he and his spouse elected, in the presence of a notary public, not to participate in the SBP. 

6.  In the interest of equity, the applicant's records should be corrected by:

* showing he elected not to participate in the SBP in a timely manner
* remitting and cancelling his SBP premium debt
* reimbursing any premiums already paid by the applicant

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  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 all Department of the Army records of the individual concerned be corrected by:

	a.  showing the applicant accurately completed the DD Form 2656 electing not to participate in the SBP and that his spouse concurred with his decision, on 28 July 2004, one day prior to the retroactive effective date of his disability retirement;

	b.  showing the DFAS timely received and processed the applicant's DD Form 2656 with the spouse's concurrence; and

	c.  reimbursing the applicant all premiums he has already paid as a result of the above corrections.



      _______ _   _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)                                         AR20110000971



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ABCMR Record of Proceedings (cont)                                         AR20110000971



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