IN THE CASE OF:	  

		BOARD DATE:  2 January 2014

		DOCKET NUMBER:  AR20130002780 


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 his enrollment in the Survivor Benefit Plan (SBP) and remission/cancellation of his SBP debt.

2.  The applicant states he was not told or made aware that SBP payments would continue even after he chose to take the Department of Veterans Affairs (VA) retired pay.  He did not receive a statement from the Defense Finance and Accounting Service (DFAS) due to his eviction from military housing that coincided with his military retirement.  He also states he was severely injured in Afghanistan and was taking heavy medication.  He did not have counsel during the processing of his retirement paperwork to advise him about what he was signing while under the effects of his medication.  Further, he was told that all military retirement benefits would stop once he received his first VA retirement payment and his VA benefits would commence; however, SBP premiums continued to be charged unknowingly.

3.  The applicant provides a notarized letter from his spouse indicating her desire to terminate SBP benefits and a debt notice from DFAS.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 17 February 2000.  He completed his training as an infantryman and remained on active duty through continuous reenlistments.  He was promoted to pay grade E-6 on 1 October 2005.  He served overseas in Korea, in Iraq (2005-2006), and deployed to Afghanistan on 21 May 2007.

3.  On 8 July 2007, he was severely wounded in a firefight which resulted in his evacuation on 10 July 2007.

4.  On 20 September 2009 while assigned to the Warrior Transition Unit at Walter Reed Army Medical Center in Washington, DC, he was honorably retired in pay grade E-7 due to permanent disability with a 100-percent service-connected disability rating.  He completed 9 years, 7 months, and 4 days of active service.

5.  A review of his Physical Evaluation Board Proceedings shows his unfitting conditions included the following:

* traumatic brain injury – 70 percent
* left below the elbow amputation with loss of upper arm muscle – 60 percent
* post-traumatic stress disorder (PTSD) – 50 percent
* PTSD migraines – 30 percent
* recurrent neuromas of left arm – 10 percent
* penetrating skull injury – 10 percent
* right dominant-hand carpal tunnel syndrome – 0 percent

6.  In March 2013, DFAS dispatched a bill to the applicant advising him that he owed $6,218.93 in SBP premiums and that a 6-percent interest rate would be charged on the unpaid balance.

7.  A staff member of the Board contacted officials at DFAS in the processing of this case to ascertain what the applicant made as his initial SBP election.  DFAS indicated that there is no DD Form 2656 (Data for Payment of Retired Personnel) on file in the DFAS system.

8.  Public Law 99-145, enacted 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.

9.  Title 10, U.S. Code, section 1448, provides that effective 1 March 1986, a married member is enrolled with spouse coverage 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.

10.  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 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's contention that his circumstances were unusual and that he was not in the proper state of mind to make an election before he was automatically enrolled in the SBP has been noted and appears to have merit.

2.  The applicant was medically retired with a 100 percent service-connected disability rating and was automatically enrolled in the SBP with full spouse coverage.  However, the applicant elected to accept a VA retirement in lieu of his military retirement as it was more advantageous to his circumstances and in so doing, because he was enrolled in the SBP, he was required to pay the premiums directly to DFAS because he was not receiving his retired pay from the Department of Defense.  However, he has now been notified that he has incurred a debt for back premiums.

3.  Therefore, since it does not appear that he was mentally able to make an informed decision regarding SBP participation, and given the unusual circumstances in his case, combined with the fact that his spouse concurs with his decision not to participate in the SBP, it is only just that the applicant be afforded that opportunity and that his records be corrected to show he opted to decline SBP participation at the time of his retirement.



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 showing the applicant elected not to participate in the SBP in a timely manner and his spouse timely concurred with the election, refunding any premiums deducted from his retired pay to him, and deeming any debt associated with his election as invalid.



      _______ _  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)                                         AR20130002780



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ABCMR Record of Proceedings (cont)                                         AR20130002780



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