IN THE CASE OF:	  

		BOARD DATE:	  19 September 2013

		DOCKET NUMBER:  AR20130002334 


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 the Survivor Benefit Plan (SBP) coverage.

2.  The applicant states he submitted the required DD Form 2656 (Data for Payment of Retired Personnel) declining SBP.  The Defense Finance and Accounting Service (DFAS) explained there was an error on the form and he was automatically enrolled in the SBP.  He is now divorced and currently has no beneficiary to warrant SBP.  He was medically discharged from the military for bilateral lower extremity amputations, traumatic brain injury, and post-traumatic stress disorder and has no memory of signing or not signing this form.  He relied heavily on his spouse for assistance.  He also has no memory of ever discussing the issue.

3.  The applicant provides:

* DD Form 2656 with a U.S. Mail postage return receipt
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 2011 divorce decree
* Department of Veterans Affairs (VA) Rating Decision

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 5 October 2005.  He served in Iraq from 7 August 2006 through 13 September 2007.
2.  On 9 April 2010, an informal Physical Evaluation Board (PEB) convened and considered his medical conditions of anatomical loss of both feet through bilateral transfemoral amputations, ulnar neuropathy and radial neuropathy, right elbow limitation, and anxiety disorder.  The PEB found him unfit to reasonably perform the duties required by his grade and military specialty.  The PEB recommended the applicant be permanently retired and rated him at 100 percent disabled.  He concurred with the findings and recommendation of the PEB.

3.  He provides a copy of a DD Form 2656, dated 20 April 2010, showing he elected not to participate in the SBP.  His spouse concurred with his election and signed the form on the 19 April 2010, prior to him making his election.  The spouse’s concurrence was also witnessed and notarized on the same date.

4.  Section XII – SBP Spouse Concurrence of the DD Form 2656 specifies that the spouse’s concurrence is required when the member is married and does not elect full spouse coverage or declines coverage.  The options available and the effects of those options would be explained.  This block also specified that the date of the spouse’s signature in Item 32b MUST NOT be before the date of the member’s signature in Item 30b.  The spouse's signature MUST be notarized in Item 32.  It further states in Item 30, "Also, I have been counseled that I can terminate SBP participation, with my spouse's 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."

5.  He was permanently retired for disability on 20 May 2010.

6.  He provides:

* A final divorce decree that shows he and his spouse were granted a divorce on 7 March 2011; the decree does not show SBP coverage was stipulated for the former spouse

7.  On 6 September 2013, DFAS confirmed that the applicant was automatically enrolled in the SBP because his DD Form 2656 was incomplete.  The current 
cost is $95.91.  He is currently being paid solely by the VA, which would be the reason for the SBP debt.  The system does not show that he has an SBP debt.  DFAS believes when a member is being paid only by the VA, they can elect to have it deducted from their VA pay.  If the applicant did not do this, that would result in a debt.

8.  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.
9.  Public Law 105-85 (18 November 1997) established the option to terminate SBP participation for member retired less than 2 years on the effective date may terminate participation, with the spouse’s concurrence and release of requirement to provide former SBP, if appropriate during the 1-year period commencing on the second anniversary of their receipt of retire pay.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant submitted a DD Form 2656 to DFAS declining SBP in April 2010, prior to his permanent retirement for disability on 20 May 2010.  His spouse at the time concurred with his election.  However, his spouse signed the form before he did.  They divorced in 2011 and their divorce decree did not stipulate SBP coverage for her as a former spouse.

2.  According to DFAS he was automatically enrolled in SBP because the
DD Form 2656 he submitted was incomplete and he is currently enrolled in SBP. 

3.  His spouse signed the DD Form 2656 one day earlier, but it is clear they both intended to decline, especially given the short length of the marriage.  Also, the SBP counselor should have seen the problem, so there is evidence of failure on the government's part.  The DD Form 2656 states the options available would be explained to the spouse and the spouse must not sign and date the form before the member does.  

4.  Therefore, as a matter of equity in this case, his records should be corrected to show he elected to decline the SBP with his spouse’s concurrence.

BOARD VOTE:

___x____  ____x___  ____x___  GRANT PARTIAL 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:

	a.  showing the applicant's DD Form 2656 was properly completed and signed by his then spouse and witness on 20 April 2010; and

	b.  showing his DD Form 2656 was timely received and processed by DFAS for declination of SBP.



      _______ _   _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)                                         AR20130002334



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ABCMR Record of Proceedings (cont)                                         AR20130002334



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