BOARD DATE: 2 October 2012
DOCKET NUMBER: AR20120005603
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 elected not to participate in the Survivor Benefit Plan (SBP).
2. The applicant states he signed his SBP election form without fully understanding the document. Neither he nor his spouse wishes to participate in the SBP program and it is not something they can financially maintain.
3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), a concurrence statement signed by his spouse, an SBP premium bill, and a letter.
CONSIDERATION OF EVIDENCE:
1. The applicant's records show he enlisted in the Regular Army on 27 May 1999 and he held military occupational specialty 11B (Infantryman). He was promoted to the rank of staff sergeant (SSG) on 1 August 2008.
2. He served in a designated imminent danger pay area with his assigned unit as follows:
* Afghanistan, 7 August 2003 - 1 May 2004
* Iraq, 5 December 2005 - 1 November 2006
* Afghanistan, 27 August - 7 December 2009
3. On an unknown date, a medical evaluation board (MEB) convened and diagnosed him with post-traumatic stress disorder (PTSD).
4. On 22 August 2011, an informal found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to PTSD with elements of anxiety disorder. His condition was determined to be a battle injury, did occur in a combat theater, and was unfitting as continued exposure to combat elements risked further mental health deterioration. The PEB recommended he be placed on the Temporary Disability Retired List (TDRL) with a 50 percent disability rating.
5. On 22 December 2011, he was honorably retired in the rank of SSG, by reason of temporary disability and transferred to the TDRL. He completed 12 years, 6 months, and 26 days of creditable active service.
6. His records contain a DD Form 2656 (Data for Payment of Retired Personnel), dated 10 November 2011, wherein he indicated he was married at the time and had four dependent children. This form shows he elected SBP "spouse only" full coverage. He signed this form on 11 November 2011 and his signature was witnessed by an SBP counselor from the Installation Management Agency, Fort Carson, CO.
7. The applicant provides an SBP concurrence statement, dated 3 April 2012, wherein his spouse stated she concurred with the SBP election change requested by her spouse to terminate SBP coverage and understood that her decision was irreversible. She further stated she understood that by signing the concurrence statement she was waving her rights to any post-death SBP benefits and that she was signing the statement of her own free will. She signed the form on 3 April 2012 and her signature was notarized by a notary public.
8. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP 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. An election, once made, was irrevocable except in certain circumstances.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows that in conjunction with his retirement processing, the applicant executed a DD Form 2656 on 10 November 2011, electing SBP "spouse only" full coverage. At the time, he was married and had four dependent children.
2. The evidence of record also confirms the applicant was being retired and placed on the TDRL due to PTSD with elements of anxiety disorder incurred in a combat zone. It is reasonable to presume that based on his PTSD resulting in the termination of his Army career, he did not fully understand the ramifications and costs of selecting SBP spouse only full coverage.
3. Therefore, as a matter of equity, it would be appropriate to correct his records to show he elected not to participate in the SBP on 10 November 2011 and that his spouse concurred with his election.
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 he elected not to participate in SBP when he completed his DD Form 2656 on 10 November 2011 and that his spouse concurred with his election and that all required signatures were properly notarized
* paying him any monies already deducted from his retired pay for SBP coverage
_______ _ _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) AR20120005603
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