IN THE CASE OF:
BOARD DATE: 2 August 2012
DOCKET NUMBER: AR20120000700
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 Survivor Benefit Plan (SBP) coverage be cancelled.
2. The applicant states he wanted SBP coverage and then changed his mind. He tried to cancel his SBP election, but he submitted his paperwork after the cutoff date.
3. The applicant provides:
* DD Form 2656 (Data for Payment of Retired Personnel)
* Orders Number 234-0003, dated 22 August 2011
* Statement, dated 22 June 2012, from the applicant's spouse
CONSIDERATION OF EVIDENCE:
1. After having had prior enlisted service, the applicant enlisted in the Regular Army on 25 August 2005 and held military occupational specialty 11B (Infantryman).
2. His DD Form 214 (Certificate of Discharge from Active Duty) shows he was discharged on 18 July 2007 by reason of disability and he received severance pay.
3. His record contains a letter from an official at the Physical Disability Board of Review (PDBR), dated 1 August 2011, written to the ABCMR. The letter states a PDRB convened on 28 June 2011 to review the applicant's medical separation action and the recommendation was that his discharge be recharacterized to reflect a permanent disability retirement with a combined disability rating of
30 percent.
4. On 8 August 2011, the ABCMR accepted the PDRB's recommendation and directed that his discharge be recharacterized to reflect permanent disability retirement with a combined disability rating of 30 percent effective on his original date of separation, 18 July 2007.
5. He provided Orders Number 234-0003, issued by Headquarters, 1st Infantry Division, Fort Riley KS, on 22 August 2011. These retirement orders show his effective date of retirement as 18 July 2007 and the date he was placed on the retirement list as 19 July 2007.
6. He provided a copy of a DD Form 2656, dated 13 October 2011, wherein he elected SBP coverage for spouse and children based on his full gross pay.
7. He provided a second copy of a DD Form 2656, dated 6 December 2011, wherein he elected not to participate in the SBP. His spouse signed the form indicating that she concurred with the new election. The form appears to have been notarized; however, it is a copy of a notarized document, not an original.
8. His spouse submitted an original notarized statement, dated 22 June 2012, wherein she stated "I agree to my husband's election to disenroll from the SBP."
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 spouses written concurrence for a retiring members election that provides less than the maximum spouse coverage.
DISCUSSION AND CONCLUSIONS:
1. The applicant was honorably discharged with severance pay on 18 July 2007. However, on 8 August 2011 the ABCMR changed his separation to reflect permanent disability retirement with a 30 percent disability rating.
2. On 13 October 2011, the applicant elected SBP full coverage for spouse and children. However, on 6 December 2011, he elected not to participate in SBP. On 22 June 2012 his spouse submitted an original notorized statement agreeing with the applicant's disenrollment request.
3. Because this was a retroactive retirement, the applicants enrollment in the SBP became effective with his placement on the retired list, 19 July 2007. Therefore, in the interest of equity, the applicant's records should be corrected to show he elected not to participate in the SBP. The applicant's spouse's vested interest in the SBP election has been satisfied through the submission of the notarized statement, dated 22 June 2012.
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 completed a DD Form 2656 electing not to participate in the SBP and that his spouse concurred with his decision, with any required notarizations, and that the form was accepted by the Defense Finance and Accounting Service prior to his 18 July 2007 retirement date; and
b. as a result of this correction, reimbursing him premiums already 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) AR20120000700
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20120000700
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2014 | 20140008237
He also provided a sworn statement from his spouse concurring with termination of SBP coverage. As a result of the Sabo Agreement, dated 11 August 2011, the applicant's discharge in 2003 was revoked and he was retroactively placed on the TDRL in 2012 with an effective date of 11 December 2003. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * showing the applicant timely completed a DD Form 2656 electing not to...
ARMY | BCMR | CY2014 | 20140012517
On 22 May 2012, the U.S. Army Physical Disability Agency (PDA) provided the applicant a DD Form 2656 and advised him to proceed to the nearest Retirement Services Officer (RSO) for assistance in completing the form. The evidence of record shows that the applicant was originally determined to be 20% disabled and was recommended for discharge with severance pay or transfer to the Retired Reserve to await his non-regular retired pay. As a result, the Board recommends that all Department of...
ARMY | BCMR | CY2012 | 20120011948
Application for correction of military records (with supporting documents provided, if any). Based on the foregoing, there is insufficient evidence to grant the applicant's request for terminating enrollment in the SBP in this case. However, he is not precluded from exercising his option to disenroll from the SBP with his wife's notarized concurrence during the 1-year period following the second anniversary of receipt of his retired pay without repayment of premiums.
ARMY | BCMR | CY2011 | 20110011348
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. SBP premiums are deducted from a members retired pay. 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...
ARMY | BCMR | CY2013 | 20130003410
Application for correction of military records (with supporting documents provided, if any). The available evidence shows that, approximately 4 months after the effective date of his placement on the TDRL, the applicant attempted to elect not to participate in the SBP. In light of the available evidence, it would be appropriate to correct his record to show he made a timely election not to participate in the SBP prior to his retirement.
ARMY | BCMR | CY2014 | 20140017069
On 18 October 2008, he completed a DD Form 2656-5 (RCSBP Election Certificate) electing "Option C (IMMEDIATE ANNUITY) at full retired pay." In order for DFAS to activate his retired pay and establish his retired pay account, he was required to complete DD Form 2656 (Data for Payment of Retired Personnel). The evidence further shows on 1 June 2012, the U.S. Army Physical Disability Agency notified him of his permanent retirement due to disability and his requirement to complete DD Form 2656...
ARMY | BCMR | CY2011 | 20110021576
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. 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...
ARMY | BCMR | CY2012 | 20120009842
A letter from the DFAS Retired and Annuitant Pay Department, dated 27 January 2012, shows the applicant was advised in accordance with the Physical Disability Board of Review's recommendation his military record had been corrected to reflect that he was placed on the Permanent Disability Retired List effective 9 October 2009. The law allows a participating member to elect to discontinue participation by submitting a DD Form 2656-2 during the period that is more than 2 years but less than 3...
ARMY | BCMR | CY2011 | 20110021300
Three options are available: (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member's 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. Public Law 106-398, dated 30 October 2000, requires that upon receipt of the 20-year letter, a qualified Reserve Component member who is...
ARMY | BCMR | CY2012 | 20120018149
The applicant provides: * DD Form 2656 (Data for Payment of Retired Personnel) * undated, self-authored letter * Retiree Account Statements, dated 1 November 2011 and 31 August 2012 CONSIDERATION OF EVIDENCE: 1. The DD Form 2656 provided by the applicant indicates he elected SBP coverage for children only based on his full gross pay. The applicant submits copies of his Retiree Account Statements, dated 1 November 2011 and 31 August 2012, showing SBP premiums have been deducted from his...