IN THE CASE OF:
BOARD DATE: 13 December 2012
DOCKET NUMBER: AR20120009842
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 termination of Survivor Benefit Plan (SBP) coverage.
2. The applicant states he is currently enrolled in the SBP. However, he is not receiving retirement payment because his Department of Veterans Affairs (VA) benefits exceed his retirement pay. He is experiencing a financial hardship and he is requesting withdrawal from the SBP. He has attempted to terminate his SBP coverage by contacting the Defense Finance and Accounting Service (DFAS), but he was unable to do so. Therefore, he continues to receive SBP premium bills.
3. The applicant provides:
* marriage license
* DD Form 2656 (Data for Payment of Retired Personnel)
* Orders 234-0609
* DFAS letter to applicant
* SBP Premium Bill
* Spouses Concurrence Statement waiving SBP coverage
* DD Form 214 (Certificate of Release or Discharge from Active Duty) with two DD Forms 215 (Correction to DD Form 214)
CONIDERATION OF EVIDENCE:
1. Orders 234-0609, published by Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, dated 22 August 2011, placed the applicant on the Permanent Disability Retired List effective 10 October 2009.
2. A DD Form 2656, dated 29 November 2011, shows the applicant elected spouse coverage based on his full retired pay.
3. Item 32 of the DD Form 2656 states also "I have been counseled that I can terminate SBP participation with my spouses written concurrence within one year after the second anniversary of commencement of retired pay. However, if I exercise my option to terminate the SBP, future participation is barred."
4. 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. He was also advised that his VA benefit award exceeded his gross monthly retired pay; therefore, his retired pay account was in a suspended status. Due to his retired pay account being in a suspended status his SBP premiums would be charged through direct billing. At that time his account reflected an SBP debt of $1,976.32.
5. He submits a signed/notarized statement from his spouse, wherein she states she concurs with the termination of SBP coverage.
6. The law governing the SBP states all elections are irrevocable unless otherwise provided by law. 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 years after the first date of entitlement to receive retired pay. The request must be submitted no earlier than the 1st day of the 25th month and no later than the last day of the 36th month from the date of entitlement to retired pay with spousal concurrence, if applicable.
DISCUSSION AND CONCLUSIONS:
1. His SBP election, in the presence of a Retirement Services Officer, shows he was counseled that he could terminate participation, with his spouse's written concurrence, within 1 year after the second anniversary of commencement of his retired pay.
2. By law, SBP elections are irrevocable unless allowed under some other provision of the law. The law allows termination with spousal concurrence only during the period that is more than 2 years but less than 3 years after the first date of entitlement to receive retired pay. However, due to the circumstances of his retirement for permanent disability in August 2011 he was retroactively retired effective 10 October 2009 and elected SBP spouse coverage on his full amount of retired pay on 29 November 2011. This lapse of more than 2 years resulted in him incurring an SBP debt of approximately $2,000.00, which the applicant contends is a financial hardship to his family.
3. In view of the foregoing and given the applicants spouse provided a statement relinquishing any right to SBP benefits it would be appropriate and equitable to correct the applicant's record to show he declined SBP coverage and that he be refunded any SBP premiums he may have paid.
BOARD VOTE:
___x____ ____x___ ____x___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined 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 the applicant declined SBP coverage with his spouses notarized concurrence and that he be refunded any SBP premiums he 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) AR20120009842
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ABCMR Record of Proceedings (cont) AR20120009842
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