IN THE CASE OF:	  

		BOARD DATE:	    29 January 2013

		DOCKET NUMBER:  AR20120011948 


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 to decline participation in the Survivor Benefit Plan (SBP) at the time of his retirement on 20 June 2011 and that any debts related to his participation be cancelled/
remitted.

2.  The applicant states he did not receive assistance or individual counseling prior to his retirement due to disability.  He states he received his DD Form 2656 (Data for Payment of Retired Personnel) in the mail at his home and was told that it needed to be signed and returned prior to his retirement.  Without the benefit of individual counseling, he signed and returned the form without understanding the manner in which this election would affect his disability retirement benefits.  He states the Army has now billed him for premiums payable for this benefit going back to the date of his retirement which places further burden on his very limited financial resources.

3.  The applicant provides exhibits A through E consisting of:

* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) with allied documents
* statement from a Soldier regarding the mortar attack on 25 August 2006 and his conversation with the applicant
* email regarding the applicant's discharge


* bill for Survivor Benefit Plan premiums
* line of duty determinations, commander's evaluation, retirement points statement, automated record, and numerous Standard Forms 600 (Chronological Record of Medical Care)
* Department of Defense Instruction (DODI) 1241.2

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, revocation of the applicant's SBP election and his release from any liability for the premiums that have been billed to him.

2.  Counsel states, in effect, the applicant reported to Fort Carson, Colorado, for pre-retirement assistance and counseling; however, he was informed that assistance and counseling was not available because his unit had not provided orders or information of his pending retirement.  Shortly thereafter he received his DD Form 2656 in the mail with instructions to return the form to complete his retirement processing.  Accordingly, he returned the form without assistance or counseling and because he is now receiving assistance from the Department of Veterans Affairs (VA) in lieu of Army retirement benefits, SBP premiums are not being deducted from his benefits.

3.  Counsel provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Arizona Army National Guard (ARNG) on 16 March 1982.  He completed training as a construction equipment repairman and continued to serve until he was discharged on 21 March 1988 and transferred to the U.S. Army Reserve (USAR) to complete his statutory service obligation.  He was honorably discharged from the USAR on 21 March 1992.

2.  On 15 February 2005, he enlisted in the Nevada ARNG (NVARNG).  On 1 April 2005, he entered full-time active duty in the NVARNG as an Abrams tank system maintainer.

3.  He deployed to Iraq with his NVARNG unit from July 2006 to July 2007 in support of Operation Iraqi Freedom.

4.  On 14 April 2011, a PEB was conducted at Fort Lewis, Washington, and evaluated the following conditions:


* Cervical Disc Fusion.  
* Left Knee Chondromalacia Patella.  

5.  The PEB found the remainder of the diagnoses considered by the MEB were considered by the PEB and found to not be compensable.  The PEB recommended that the applicant be granted permanent disability retirement with a 30-percent disability rating.  It also determined that his disabilities did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104.

6.  On 28 April 2011, the applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.

7.  On 16 May 2011, a letter was dispatched to the applicant notifying him that his PEB had been approved and he would be retired by reason of permanent disability with a 30-percent disability rating on 20 June 2011.  He was also provided a DD Form 2656 and was advised to contact a Retirement Services Officer (RSO) from the list provided for assistance regarding his retirement and SBP counseling.  He was further advised that officials at the Defense Finance and Accounting Service (DFAS) could not process his retired pay benefits until the form was received.

8.  On 9 June 2011, he submitted his DD Form 2656 electing spouse and children full coverage.

9.  On 20 June 2011, he was honorably discharged from the NVARNG and was transferred to the Retired Reserve.  On 28 May 2012, DFAS issued the applicant a bill for unpaid SBP premiums in the amount of $351.61.

10.  Public Law 99-145, enacted on 8 November 1985 but effective 1 March 1986, required a spouse's written concurrence for a retiring member's election that provided less than maximum spouse coverage.  The spouse's signature must be witnessed and notarized.

11.  Title 10, U.S. Code, section 1448, provides that effective 1 March 1986, a married member is enrolled in the SBP with spouse coverage based on full retired pay at the time of retirement unless that spouse has concurred in writing to another election requested by the member pursuant to Department of Defense Financial Management Regulation, volume 7B, chapter 43.  When the spouse's concurrence is required, the signature indicating concurrence must be corroborated by one or more witnesses.



12.  Public Law 105-85, enacted on 18 November 1997, established the option to terminate SBP participation.  Retirees have a 1-year period beginning on the second anniversary of the date on which their retired pay started to withdraw from the SBP.  The spouse's concurrence is required.  No premiums will be refunded to those who opt to disenroll.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he declined participation in the SBP.

2.  It is clear that the applicant completed a DD Form 2656 on 9 June 2011 electing full SBP coverage for his spouse and children.  He chose an irrevocable option when he enrolled in the SBP on 9 June 2011.

3.  The applicant was advised in writing to contact the nearest RSO for guidance and counseling regarding his retirement and his SBP options.  His failure to do so does not constitute an error or injustice on the part of the Army.

4.  Accordingly, he has enjoyed the benefit of SBP coverage since June 2011.  There is no evidence in the available records and the applicant has not provided sufficient evidence which shows he was not properly advised about the potential consequences of enrolling in the SBP when he made his election for enrollment.  Based on the foregoing, there is insufficient evidence to grant the applicant's request for terminating enrollment in the SBP in this case.

5.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X___  ____X___  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   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)                                         AR20120011948



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ABCMR Record of Proceedings (cont)                                         AR20120011948



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