IN THE CASE OF:
BOARD DATE: 19 September 2013
DOCKET NUMBER: AR20130000379
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 military records to show he withdrew from the Survivor Benefit Plan (SBP).
2. The applicant states:
* he chooses to withdraw from the SBP
* at the time of enrollment he was not 100-percent disabled and did not understand the entire process
* a month later he was determined to be 100-percent disabled
* he was not aware of the process to disenroll
3. The applicant provides:
* DD Form 2656-5 (Reserve Component SBP (RCSBP) Election Certificate)
* Department of Veterans Affairs (VA) Rating Decision, dated 25 October 2010
* SBP/Retired Servicemen's Family Protection Plan Premium Bill, dated August 2012
* DD Form 2656-2 (SBP Termination Request)
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Army National Guard (ARNG) on 29 August 1988. He was promoted to staff sergeant on 10 September 2005.
2. His notification of eligibility for retired pay at age 60 (20-year letter) was prepared on 15 September 2008. His DD Form 2656-5, dated 8 October 2008, shows he enrolled in the RCSBP for spouse coverage, option C (Immediate Annuity), full base amount.
3. His DD Form 2656 (Data for Payment of Retired Personnel), dated 11 August 2010, shows he elected SBP coverage for spouse and dependent children, full base amount.
4. He was discharged from the ARNG and placed on the Temporary Disability Retired List (TDRL) effective 1 September 2010.
5. He provides a VA Rating Decision, dated 25 October 2010, that shows he was granted service compensation for the following conditions:
* post-traumatic stress disorder with alcohol abuse (100 percent)
* right shoulder, degenerative arthritis (dominant) (40 percent)
* left shoulder, degenerative arthritis (30 percent)
* gastroesophageal reflux disease, claimed as acid reflux (10 percent)
6. He was removed from the TDRL on 16 May 2012 because of permanent physical disability (80 percent).
7. He provided a bill from the Defense Finance and Accounting Service, dated August 2012, that states he owes $3,820.17 for SBP costs as of that date.
8. He provides a DD Form 2656-2, dated 12 August 2012. Section I (Instructions) states "Applicability. This form is used to voluntarily discontinue participation in the SBP. In accordance with Title 10, U.S. Code, section 1448a, a participant in SBP may elect to discontinue participation during the 25th through the 36th month after commencement of payment of retired pay." His spouse concurred with his decision to terminate participation in the SBP.
9. 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.
10. Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.
11. Public Law 96-402, enacted 9 October 1980 and effective 1 December 1980, established a withdrawal clause for members rated totally disabled by the VA.
12. Title 10, U.S. Code, section 1452(g)(1), provides that a person who has elected to participate in the SBP and who is suffering from a service-connected disability rated by the VA as totally disabling and has suffered from such disability while so rated for a continuous period of 10 or more years (or, if so rated for a lesser period, has suffered from such disability while so rated for a continuous period of not less than 5 years from the date of last discharge) may discontinue participation in the plan. Discontinuance is effective on the first day of the first month following the month in which the request is received. Participation may not be discontinued without the written consent of the beneficiary or beneficiaries of the person.
13. Public Law 105-85, enacted 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 SBP. The spouse's concurrence is required. No premiums will be refunded to those who opt to disenroll. The effective date of termination is the first day of the first calendar month following the month in which the election is received by the Secretary concerned.
DISCUSSION AND CONCLUSIONS:
1. The evidence shows the applicant elected SBP coverage for spouse and children prior to his disability retirement in September 2010.
2. Since he has not had a 100 percent disability rating for at least 5 years, he is not eligible to disenroll from SBP under Public Law 96-402.
3. However, he provides a DD Form 2656-2, dated 12 August 2012. Since his spouse concurred with this request to terminate participation in the SBP, and the law specifies that a participant in the SBP may elect to discontinue participation during the 25th through the 36th month after commencement of payment of retired pay, it would be equitable to correct his record to show he withdrew from the SBP on 1 September 2012 to be effective 1 October 2012.
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 is 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 his DD Form 2656-2 was timely received and processed by the appropriate office; and
b. showing he withdrew from the SBP on 1 September 2012 to be effective
1 October 2012.
_______ _ 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) AR20130000379
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