BOARD DATE: 8 December 2011
DOCKET NUMBER: AR20110008601
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 his records be corrected to show he declined participation in the Survivor Benefit Plan (SBP) and that all premiums deducted to date be returned to him.
2. The applicant states he was not afforded the chance to make an election under the SBP and was automatically enrolled in the SBP. He goes on to state he was retired in an unusual fashion and has decided that he does not desire to participate in the SBP. His wife has concurred.
3. The applicant provides a notarized DD Form 2656 (Data for Payment of Retired Personnel), a copy of a letter from the Defense Finance and Accounting Service (DFAS), and copies of his separation orders.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 2 July 2003 for a period of 3 years. He deployed to Iraq from 15 December 2003 to 15 March 2004.
2. He again deployed to Iraq from 1 February 2005 to 17 January 2006.
3. He was preparing for this third deployment to Iraq when he was diagnosed as having post-traumatic stress disorder (PTSD).
4. On 8 August 2007 he was honorably discharged under the provisions of Army Regulation 635-40, paragraph 4-24B(3), due to disability with severance pay.
5. The applicant applied to the Department of Defense (DOD) Physical Disability Board of Review (PDBR) requesting that his disability processing be reviewed. On 21 December 2010 the PDBR recommended that the applicant be placed on the Temporary Disability Retired List (TDRL) effective 8 August 2007 with a 50% disability rating for a period of 6 months and then permanently retired with a 30% disability rating.
6. On 27 December 2010 the Deputy Assistant Secretary of the Army (Review Boards) approved the findings and recommendations of the PDBR and notified the applicant that he would be afforded the opportunity to elect participation in the SBP and medical Tricare retiree options.
7. The applicants discharge orders were revoked and his retirement orders were published on 28 February 2011.
8. On 4 March 2011 the Army Physical Disability Agency provided the applicant a DD Form 2656.
9. On 5 April 2011 DFAS notified the applicant that he had been placed on the TDRL effective 9 August 2007 and permanently retired as of 9 February 2008. DFAS also notified him that he was responsible for paying premiums for SBP coverage.
10. The applicant and his spouse completed the DD Form 2656 declining SBP coverage on 11 April 2011.
11. Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouses written concurrence for a retiring members election that provides less than the maximum spouse coverage.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that his circumstances were unusual and that he was not afforded the opportunity to make an election before he was automatically enrolled in the SBP has been noted and appears to have merit.
2. The applicant was originally discharged in 2007 due to disability with severance pay. However, he appealed the discharge to the DOD PDBR in 2010 and it was determined he should have been medically retired. Accordingly, the appropriate authority directed he be retired retroactively to the date of his discharge and that he be given the opportunity to participate in the SBP.
3. However, before the applicant made his SBP election he was automatically enrolled in the SBP retroactive to February 2008 and immediately incurred a debt for back premiums.
4. Therefore, since he was officially informed by the Deputy Assistant Secretary of the Army (Review Boards) that he would be afforded an opportunity to make an SBP election, it is only just that the applicant be afforded that opportunity. He has clearly stated that he does not wish to participate in the SBP and his spouse has concurred with the decision.
5. Therefore, in the interest of fairness and as a matter of equity, his records should be corrected to show that the applicant elected not to participate in the SBP in a timely manner, that his spouse concurred with the election, and that he is entitled to a refund of any premiums deducted from his retired pay.
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 showing that the applicant elected not to participate in the SBP in a timely manner, that his spouse concurred with the election, and that he be refunded any premiums deducted from his retired pay.
_______ _ 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) AR20110008601
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