IN THE CASE OF:	  

		BOARD DATE:	  24 January 2012

		DOCKET NUMBER:  AR20110011348 


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, in two applications, correction of his record to show he declined Survivor Benefit Plan (SBP) coverage.

2.  The applicant states:

   a.  Both he and his spouse were improperly briefed regarding the SBP during his medical discharge processing from the Army National Guard (ARNG).
   
   b.  Although he elected to participate in the SBP at the reduced base amount of $300.00, his spouse did not concur with his decision and therefore assumed he would not be enrolled in this plan based on her non-concurrence.
   
   c.  Had he received proper counseling he would not have elected to enroll in the SBP and his spouse would have concurred with his decision.  He submits a notarized statement from his spouse confirming this information and acknowledging that she understands she will not receive a portion of his retired pay upon his death.
   
   d.  His previous attempt to correct his SBP election made through the Defense Finance and Accounting Service (DFAS), Retirement Branch, has only resulted in erroneous and conflicting information until he finally received the correct information to appeal to the Army Review Boards Agency.


3.  The applicant provides:

* Retirement Order
* Department of Veterans Affairs (VA) Rating Decision, dated 20 December 2007
* Self-Authored Statement
* Spousal Consent Statement
* DD Form 2656 (Data for Payment of Retired Personnel)
* DD Form 2656-2 (Survivor Benefit Plan Termination Request)

CONSIDERATION OF EVIDENCE:

1.  On 20 June 2008, a Physical Evaluation Board (PEB) at Fort Sam Houston, Texas, found the applicant unfit for duty based on post traumatic stress disorder (PTSD), incurred in the line of duty while serving in Kuwait in 2003.  The PEB recommended that the applicant be permanently retired with a 30 percent (%) disability rating.

2.  On 3 July 2008, the Chief, Operations Division, U.S. Army Physical Disability Agency (USAPDA) approved the PEB's recommendation on behalf of the Secretary of the Army.  This official also prepared a memorandum to the applicant dated 3 July 2008, notifying him:

   a.  of his approved retirement by reason of permanent disability with a 30% disability rating;
   
   b.  prior to activation of his retired pay account, he must complete the enclosed DD Form 2656 and return it in the pre-addressed envelope to the DFAS; and
   
   c.  if he required assistance, to contact a Retirement Services Officer at any major military installation.
   
3.  On 3 July 2008, the USAPDA, published Orders Number D185-03 directing the applicant's release from duty due to a physical disability incurred as a result of an injury while entitled to receive basic pay and placement on the Retired List with a 30% disability rating effective 8 August 2008.  These orders show he held the rank of staff sergeant and he completed 6 years, 1 month, and 25 days of creditable service.


4.  The applicant provides:

   a.  A VA rating decision, dated 20 December 2007, showing he was granted a combined rating of 90% based on PTSD and major depressive disorder; however, he was being paid at the 100% rate based on a previous decision which granted him individual un-employability.
   
   b.  A DD Form 2656 he completed on 15 July 2008, which shows:
   
* he and his spouse were married on 29 August 1998
* he elected spouse and children SBP coverage at the reduced base amount of $300.00
* item 32 (Spouse) was never completed and left blank

   c.  A notarized spousal concurrence statement dated 8 July 2011, wherein she indicates she just received information that explains the SBP election made by her spouse and its effects.  She concurs with his decision to decline SBP coverage and states had she understood the SBP at the time of the applicant's retirement she would have concurred with his election to decline SBP prior to his retirement.

   d.  A DD Form 2656-2 which shows both he and his spouse initiated a request to terminate participation in the SBP on 11 November 2011.

5.  On 10 December 2011, a staff member of the Board contacted DFAS to ascertain the current SBP coverage in effect, the amount of the premiums, and when they began.  The DFAS official provided:

   a.  The applicant's retired pay was immediately suspended upon his retirement on 8 August 2008 because his VA disability compensation pay exceeded the amount of his retired pay.
   
   b.  The applicant only receives VA disability compensation pay and as such no SBP premiums have been paid since his retirement.
   
   c.  DFAS has forwarded information to the applicant informing him of his requirement to pay his SBP premiums for full coverage in accordance with his invalid election made at the time of retirement which did not include his spouse's concurrence.
   
   d.  There is no evidence in the applicant's DFAS record that shows he ever submitted a request to terminate participation in the SBP.

6.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  

7.  Section 1448, Title 10, U. S. Code provides that if a person makes an election not to participate in the SBP, the person’s spouse shall be notified of that election.  Spousal concurrence is needed only when a married person elects to provide an annuity for his spouse at less than the maximum level or to provide an annuity for a dependent child but not for his/her spouse.  An election received for less than the maximum level without spousal concurrence will automatically default in activation of SBP coverage at the maximum level.

8.  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.

9.  Title 38, U. S. Code, section 5304 states that, except to the extent that retirement pay is waived under other provisions of law, not more than one award of pension, compensation, regular, or reserve retirement pay shall be made concurrently to any person based on such person's own service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his participation in the SBP should be terminated due to the ill-guided information he received at the time of retirement regarding this plan.  

2.  The evidence of record confirms the applicant elected spouse and children SBP coverage at a reduced base amount at the time of his retirement from military service.  The DD Form 2656 prepared at the time fails to show the spouse's concurrence with his election for reduced coverage and as a result, this election was considered invalid by DFAS and his coverage automatically defaulted to an election of full coverage.

3.  However, the evidence of record also confirms that subsequent to the applicant's approved permanent disability retirement, he was provided a 
DD Form 2656 via mail and informed to complete and return this document prior to activation of his retired pay account.  He was also advised to contact a local 

RSO should he have any questions.  This lends much credibility to his claim regarding the formal or lack of formal counseling both he and his spouse received regarding the SBP.  In addition, the applicant's spouse indicates her limited understanding of the SBP at the time of his retirement and provides her concurrence with his decision to decline SBP coverage.

4.  Based on the applicant's VA disability rating of 100 percent, his Army retired pay was suspended upon his retirement on 8 August 2008.  This was done because his VA disability compensation pay exceeds the amount of his retired pay.  SBP premiums are deducted from a member’s retired pay.  Because the applicant was no longer receiving Army retired pay, he was required to remit payment of SBP premiums to DFAS.  

5.  Because the applicant did not do so (and it can be a difficult concept to understand), he has incurred a debt to the Government for payment of SBP premiums.

6.  Therefore, based on the lack of SBP counseling received at the time of retirement, the applicant's record should be corrected in the interest of equity and justice, to show he declined participation, with his wife's concurrence, in the SBP which would also result in the termination of any premiums currently owed for this benefit.

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:

	a.  the applicant declined participation in the SBP with his wife's concurrence, effective 8 August 2008; and

	b.  cancelling any debt currently owed as a result of unpaid SBP premiums.




      _______ _   __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)                                         AR20110011348



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ABCMR Record of Proceedings (cont)                                         AR20110011348



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