BOARD DATE:	  18 December 2012

		DOCKET NUMBER:  AR20120009963 


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 cancellation of his participation in the Survivor Benefit Plan (SBP).

2.  He states, in effect, that when he was retired for medical reasons he was not given the opportunity to complete a DD Form 2656 (Data for Payment of Retired Personnel) in a timely manner.  As a result, he is now paying for automatic SBP coverage.  He contacted the Defense Finance and Accounting Service (DFAS), and he was told to submit DD Form 2656-2 (SBP Termination Request).  He was later informed the DD Form 2656-2 could not be processed, and he would have to petition the Army Board for Correction of Military Records.  

3.  He provides:

* self-authored memorandum for record (MFR)
* orders
* DD Form 2656
* DD Form 2656-2
* e-mail correspondence
* Retiree Account Statement

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service, effective 2 December 1998, the applicant was appointed as a first lieutenant/O-2 in the Army National Guard (ARNG).   

2.  On 21 November 2011, the U.S. Army Physical Disability Agency issued Orders D 325-02.  The orders released him from assignment and duty because of physical disability incurred while entitled to basic pay and under conditions that permitted his retirement for permanent physical disability.  He was transferred to the retired list effective 26 December 2011.  

3.  A DD form 2656, dated 14 February 2012, shows in Section IX (SBP Election) he elected not to participate in the SBP.  His spouse signed the form in Section XII (SBP Spouse Concurrence) indicating she concurred with the SBP election.  

4.  A DD Form 2656-2, dated 1 March 2012, shows he requested to discontinue participation in the SBP and his spouse concurred.

5.  On 17 July 2012, a DFAS staff member confirmed the applicant was given automatic SBP coverage because he did not submit a valid election at retirement.  The staff member stated the applicant is eligible to terminate his election upon reaching his 25th month of retirement on 26 December 2013.

6.  The applicant provides a self-authored MFR in which he provides the following timeline of his retirement processing:

	a.  17 December 2011 – He contacted his Physical Evaluation Board Liaison Officer (PEBLO) to ask if the PEBLO had heard anything about his medical retirement.  The PEBLO stated he had not.

	b.  6 January 2012 – He discovered his medical insurance had been cancelled.  He e-mailed the PEBLO to ask if he had been retired, and the PEBLO informed him orders had been sent to his unit.

	c.  6 January 2012 – He informed a senior noncommissioned officer he would be in to do the paperwork.  In a later phone call, he was told the personnel needed to complete his paperwork would not be available.  He asked if he could complete the paperwork at the Armed Forces Reserve Center in Bangor, ME.  He was told the earliest date would be 30 January 2012.  

	d.  23 January 2012 – He took his family to Camp Keyes, Augusta, ME, to obtain identification cards and to enroll for medical benefits.  He was not told to complete a DD Form 2656.  When he discovered he was not given the form to complete, he called Camp Keyes, and he was told a general officer would bring the form to the applicant's State promotion ceremony on 9 February 2012.

	e.  14 February 2012 – He completed a DD Form 2656, had it notarized, and mailed it to DFAS.
	f.  23 February 2012 – He called DFAS "to make sure everything was all set."  DFAS informed him "that because the [SBP] election wasn't made that the SBP went into automatic."  He was later told to complete a DD Form 2656-2, which he did.

	g.  23 March 2012 – He received his first retirement check and noticed a deduction for SBP.  He called DFAS and was told his DD Form 2656-2 had not been processed.

	h.  1 May 2012 – He received his monthly check, with a deduction for SBP.  He called DFAS again and was told to petition this Board.

7.  He provides e-mail correspondence corroborating portions of the timeline he provides in his MFR.

8.  He provides a Retiree Account Statement, dated 23 March 2012, showing a deduction for spouse-only SBP coverage.

9.  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.  An election to decline to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse (or child only coverage, if applicable) coverage.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record supports the applicant's request to cancel his participation in the SBP.  

2.  The evidence shows he was not properly given the opportunity to make an SBP coverage election prior to his retirement.  As a result, the election defaulted to full spouse coverage.  Because he was deprived of the opportunity to make an election in a timely manner, the default election is inequitable.  

3.  His wife concurs with his election to cancel participation in the SBP.

4.  In view of the foregoing, it would be appropriate to correct his record to show he made a timely election not to participate in the SBP and to reimburse all SBP premiums withheld from his retired pay.  



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 to show he made a timely election not to participate in the SBP and to reimburse all SBP premiums withheld from his retired pay.



      _______ _ 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)                                         AR20120009963





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ABCMR Record of Proceedings (cont)                                         AR20120009963



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