IN THE CASE OF:	  

		BOARD DATE:	    5 June 2012

		DOCKET NUMBER:  AR20110021576 


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 declined participation in the Survivor Benefit Plan (SBP).

2.  He states:

* he does not want to participate in the SBP 
* he has attempted to cancel it for a year and he has exhausted all of his options
* his records were reviewed in July/August 2006 and he retired last year, but his records were backdated

3.  He provides:

* DD Form 149 (Application for Correction of Military Record)
* Notarized statements
* Letter and memorandum from the Office of the Deputy Chief of Staff G-1
* Letter from the Army Review Boards Agency
* Email correspondence

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 applicant enlisted in the Regular Army on 16 August 2001.  He was married on 2 May 2006.  

3.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged on 16 June 2006 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3) by reason of physical disability with severance pay.  

4.  On an unknown date in 2010, the Physical Disability Board of Review (PDBR) directed that the applicant's disability separation be changed to a disability retirement.  On 24 August 2010, the applicant completed a DD Form 2656 (Data for Payment of Retired Personnel) electing to participate in the SBP for spouse coverage based on the threshold amount in effect on the date of retirement. 

5.  The applicant signed the DD Form 2656 under Section XI (Certification) which specifically states in part, "Also, I have been counseled that I can terminate SBP participation, with my spouse's written concurrence, within 1 year after the second anniversary of commencement of retired pay.  However, if I exercise to terminate the SBP, future participation is barred."  His spouse signed the form indicating she concurred with the SBP election made by the applicant.  She acknowledged she had received information that explained the options available and the effects of those options.  

6.  A DD Form 215 (Correction to DD Form 214), dated 25 August 2010, corrected the following items on his DD Form 214 to show:

* item 23 (Type of Separation), “Retirement”
* item 25 (Separation Authority), “Army Regulation 635-40, paragraph 
4-24b(2)”
* item 26 (Separation Code), “SFK”
* item 27 (Reentry Code), “4”
* item 28 (Narrative Reason for Separation), “Disability, Temporary//Nothing Follows”

7.  The applicant provided an undated notarized statement requesting cancellation of his participation in SBP.  He stated:

* he was aware that he was within the cancellation period deadline
* he cannot afford to pay for SBP
* if he had received both his retirement and Department of Veterans Affairs (VA) benefits then he could afford the plan

8.  He provided a notarized statement, dated 14 February 2011, from his spouse stating that she understands her husband's wishes to cancel participation in SBP.  She acknowledges she understands that cancelling the plan means she will not receive any funds from the plan if he dies before she does and she is completely fine with him cancelling the plan.  

9.  A letter from the Office of the Deputy Chief of Staff G-1, dated 3 October 2011, informed the applicant of the following:

   a.  The only government administrative error found was he received automatic full spouse SBP coverage when he actually elected reduced spouse SBP coverage with his spouse’s concurrence.
   
   b.  The Defense Finance and Accounting Service (DFAS) was directed to correct his SBP election to spouse with a reduced base amount of $635, which was the threshold base amount on the effective date of his retirement.
   
   c.  Since his retirement was retroactive to 17 June 2006 he did not have the opportunity to terminate his SBP coverage between the 25th and 36th month following retirement.
   
   d.  He could apply to this Board for relief.

10.  DFAS email, dated 26 April 2010, informed a staff member of this Board that the applicant was medically retired and placed on the temporary disability retired list (TDRL), effective 17 December 2006.  The applicant was removed from the TDRL and placed on the permanent disability retired list on 1 September 2010.  Their system reflected the effective date of SBP was 17 December 2006.  

11.  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 member may elect not to participate (with their spouse’s concurrence, if required), but the election must be made before the first day for which the member is eligible to receive retired pay.  
12.  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.  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 evidence of record shows that by action of the PDBR in 2010 the applicant was medically retired, effective 16 June 2006, and he was placed on the TDRL on the following date.  

2.  The applicant completed a DD Form 2656 on 24 August 2010 and he elected to participate in SBP for spouse coverage at a reduced amount.  His spouse concurred with his decision.  

3.  By law, the applicant had a 1-year period beginning on the second anniversary of the date on which his retired pay started to withdraw from SBP.  However, the applicant did not have the opportunity to terminate his SBP coverage between the 25th and 36th month following retirement since his retirement was retroactive to 17 June 2006.

4.  Therefore, as a matter of equity it would be appropriate to amend the applicant's records to show he declined SBP participation, with his spouse's concurrence, within a timely manner and refund him any premiums paid.

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 he declined SBP participation with his spouse's concurrence in a timely manner; and 
   
   b.  refunding him all SBP premiums paid.




      _______ _  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)                                         AR20110021576



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ABCMR Record of Proceedings (cont)                                         AR20110021576



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