IN THE CASE OF:	  

		BOARD DATE:	  24 September 2013

		DOCKET NUMBER:  AR20130002979 


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, in effect, correction of her records to show she elected not to participate in the Survivor Benefit Plan (SBP) upon retirement in May 2010 by reason of physical disability.

2.  The applicant states after having her information reviewed by officials at the Defense Finance and Accounting Service (DFAS), they explained to her they never received her DD Form 2656 (Data for Payment of Retired Personnel); therefore, they automatically set up and deducted SBP premiums each month from her account.  She wants this debt cancelled and the outstanding balance forgiven in total.  She is a retired disabled veteran on a fixed income.  She has been unsuccessful at getting and maintaining employment due to her disabilities.  She has five dependent children and a spouse.  She is unable to make and/or afford to keep and maintain these monthly payments that are an added strain and hardship.  She cannot recall signing and/or agreeing to this debt.

3.  The applicant provides 

* Orders D111-17, issued by the U.S. Army Physical Disability Agency (USAPDA), dated 21 April 2010
* DD Form 2656-5 (RCSBP Election Certificate), dated 17 September 2012
* Signed/notarized statement from her spouse, dated 23 April 2013

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Louisiana Army National Guard (LAARNG) on
2 September 1998 and she held military occupational specialty 92A (Automated Logistical Specialist).  She served through multiple extensions in the ARNG.

2.  She and her spouse, Kirkland, were married on 11 July 2003.

3.  She entered active duty on 16 April 2008 and she subsequently served in Iraq from 19 June 2008 to 29 March 2009.  She was honorably released from active duty on 22 April 2009.

4.  On 15 April 2010, a physical evaluation board (PEB) determined she was physically unfit and rated her at 40 percent combined disability rating.  The PEB recommended her permanent retirement.  She concurred.

5.  On 25 May 2010, she was retired by reason of permanent disability and placed on the Retired List in the rank/grade of staff sergeant (SSG)/E-6 effective
26 May 2010.  

6.  There is no indication she submitted a DD Form 2656 in connection with her retirement declining SBP coverage.  As a result, her coverage defaulted to spouse and children SBP coverage. 

7.  On 17 September 2012, she completed a DD Form 2656-5 and elected Option A (I decline to make an election until age 60), for spouse and children, based on the full retired pay.

8.  She submitted a signed/notarized statement from her spouse, dated
13 September 2012, indicating he opts out of the Reserve Component SBP and does not want this program.

9.  A staff member of the Board contacted the applicant on several occasions between 3 and 9 September 2013 in an effort to request any correspondence from/with DFAS related to debt or termination of the SBP.  The applicant did not respond.

10.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  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.  An election, once made, was irrevocable except in certain circumstances.  This law also provides that every member having a spouse and/or child(ren), who retires/transfers to the retired list on or after that date, is automatically covered under the SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list.

11.  Title 10, U.S. Code, section 1448, in effect at the time, required notice to a spouse if a member elected not to participate in the SBP.  The statute also provided for automatic enrollment for spouse coverage at the full base amount unless a member affirmatively declined to participate in the SBP prior to receiving retired pay.  Title 10, U.S. Code, section 1448 was amended effective 1 March 1986 to require written concurrence by the spouse in a member's decision to decline the SBP or elect spouse coverage at less than the full base amount.

DISCUSSION AND CONCLUSIONS:

1.  The applicant retired on 25 May 2010 by reason of permanent disability from the ARNG.  There is no indication she declined participation in the SBP at the time and/or that her spouse concurred with that decision.  Accordingly, by law, she was automatically covered under SBP at the maximum rate.

2.  Because it does not appear she was on an Army installation at the time of her disability processing it appears she may not have been properly counseled regarding this program. It also appears the monthly premiums have taken a toll on her financial situation. Although there is no error in her records, since her spouse has concurred with the decision to terminate SBP enrollment, as a matter of equity only, her records should be corrected to show she made an election to decline participation at the time she retired and her spouse concurred with that decision. 

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 by:

* showing the applicant timely completed a DD Form 2656 electing not to participate in the SBP, and that her spouse properly concurred with her decision on the same date
* showing the Defense Finance and Accounting Service timely received and processed the applicant's DD Form 2656 declining the SBP with the spouse's concurrence
* reimbursing any premiums already paid by the applicant as a result of this correction


      _______ _   _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)                                         AR20130002979



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130002979



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1