IN THE CASE OF:	  

		BOARD DATE:		  15 December 2011

		DOCKET NUMBER:  AR20110009972 


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 that his DD Form 2656-6 (Survivor Benefit Plan (SBP) Termination Request) dated 8 October 2004, to disenroll from the SBP be honored.

2.  The applicant states, in effect, on 6 October 2003, he was rated 100 percent disabled by the Department of Veterans Affairs (VA) making his enrollment in SBP redundant.  However, he and his spouse were never informed of the implications of a 100 percent VA rating and Dependency and Indemnity Compensation (DIC) at the time of their SBP briefing.  He later tried to terminate his SBP on two separate occasions (2004 and 2011) but was informed by the SBP program proponent that Retirement Services Office (RSO) had given him the wrong form.  The Defense Finance and Accounting Services Office disapproved his request.

3.  His spouse has concurred with his request.

4.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty), effective 15 October 2002
* VA Rating Decision, dated 6 October 2003
* DD Form 2656-2, dated 8 October 2004
* DD Form 2656-2, dated 27 April 2011


* DFAS-CL Form 1741/117 (SBP Withdrawal Consent), dated 2 May 2011
* Spousal Consent Form, dated 2 May 2011


CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The record does not contain documents to show he elected to participate in the SBP; however, based on his contention that he was not properly briefed about the effect of a permanent VA disability rating in regards to his participation in the SBP, it was presumed that he voluntarily elected to participate in the plan.

3.  The applicant's records show he was placed on the Temporary Disability Retired List (TDRL) on 15 October 2002.  His DD Form 214 shows he completed 
13 years, 4 months, and 1 day of active service.  The highest grade held was major (MAJ/O4).  

4.  On 6 October 2003, the VA awarded him a 100 percent service-connected disability rating for a fractured vertebra with cord involvement with results in being bedridden or requiring long leg braces.  The effective date of this benefit was the first day following his release from active duty.

5.  The applicant provides copies of the following showing three attempts to discontinue his participation in the SBP:

* notarized DD Form 2656-2, dated 8 October 2004
* DD Form 2656-2, witnessed by the RSO Counselor, dated 27 April 2011
* DFAS-CL 1741/117 with notarized spousal consent, dated 2 May 2011

6.  The DFAS reported that the applicant's request to withdraw from the SBP was received on 14 October 2004; however was denied because he was not eligible 


to withdraw at the time.  The DFAS representative stated a retired service member may withdraw from the SBP if he has a VA-awarded disability rating of 100% at retirement and for 5 continuous years afterward, or if he is given a VA awarded disability rating of 100% at any point after retirement and for
10 continuous years beyond his retirement.  According to DFAS records, the applicant has never met any of these requirements and has not been eligible to withdraw from the plan.

7.  Title 10, Section 1452(g) allows a retiree with a spouse who will be entitled to DIC to terminate SBP.  The retiree must be rated 100 percent by the VA for five continuous years from date of last discharge from active duty, in this case date of retirement, or 10 continuous years if the effective date of the 100 percent disability is after retirement date.  SBP premiums already paid will be refunded to the retiree's surviving spouse

8.  Title 10, Section 1452(g) states a retiree who has elected to participate in the Plan and who is suffering from a service-connected disability rated by the Secretary of Veterans Affairs as totally disabling and has suffered from such disability while so rated for not less than five continuous years from the date of retirement or if awarded after retirement from 10 or more continuous years may discontinue participation in the SBP by submitting to the Secretary concerned a request to discontinue participation in the Plan.

9.  Participation in the SBP of a person who submits a request shall be discontinued effective on the first day of the first month following the month in which the request is received by the Secretary concerned.  Effective on such date, the Secretary concerned shall discontinue the reduction being made in such person’s retired pay on account of participation in the Plan. 

10.  Upon the death of a person described in paragraph (1) who discontinued participation in the SBP in accordance with this subsection, any amount deducted from the retired pay of that person under this section shall be refunded to the person’s surviving spouse.

11.  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.


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant elected to participate in the SBP prior to his placement on the TDRL on 15 October 2002.  The DVA rated his service-connected disability as permanent with an effective date of 16 October 2002 and statue states a retiree may withdraw from SBP base on a VA total disability rating after five continuous years from the date of retirement.  The applicant's DFAS records show they received his request with spousal concurrence to withdraw/terminate participation in the SBP on 14 October 2004.  This request was denied because he was not eligible under the VA disability guidelines; however, SBP can also be terminated within a one year window between the 25th and 36th month after the start of retirement pay.  Although, his request was received in the 24th month, as a matter of equity it would be appropriate to correct the record to show he terminated his participation in the SBP effective 1 November 2006, the 25th month after the start of retirement pay.

2.  Although, SBP premiums are not reimbursed when the SBP is terminated under the conditions listed above, the applicant has continued to pay premiums and those premiums deducted after the fifth continuous year of his VA total disability rating, effective 16 October 2002, should be refunded to the surviving spouse upon the retiree's death. 

3.  In view of the above, his request should be granted.

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

	a.  showing he withdrew from the SBP effective 1 November 2004 and


	b.  refunding premiums paid after the effective date of his withdrawal.



      __________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)                                         AR20110009972



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ABCMR Record of Proceedings (cont)                                         AR20110009972



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