BOARD DATE: 15 October 2013
DOCKET NUMBER: AR20130003410
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 to be removed from the Survivor Benefit Plan (SBP).
2. He states he did not receive his orders until 30-45 days after he had been retired. A DD Form 2656 (Data for Payment of Retired Personnel) was completed, and he chose not to participate in the SBP. His wife agreed, as shown by her notarized signature provided on 10 July 2012. He didn't get good advice at the time of his retirement; therefore, he didn't know anything about the SBP. He didn't even know a DD Form 2656 had to be completed.
3. The applicant provides a DD Form 2656, orders, and an SBP/RSFPP (Retired Serviceman's Family Protection Plan) Premium Bill.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Kentucky Army National Guard (KYARNG) on 21 October 2001. After completing initial entry training, he was awarded military occupational specialty 19K (M1 Armor Crewman). His record shows he was mobilized in support of Operation Iraqi Freedom from 30 November 2006 to 11 October 2007, and he served in Iraq from 23 December 2006 to 25 September 2007.
2. On 17 February 2009, a psychologist stated the applicant was not fit for duty due to symptoms of post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI). The psychologist indicated a Medical Evaluation Board (MEB) was to be scheduled.
3. On 25 July 2011, an MEB found the applicant had four diagnoses that failed to meet retention standards and were medically unacceptable:
* PTSD
* major depressive disorder
* chronic low back pain secondary to sacroilitis
* recurrent postconcussive headaches with frequent incapacitating attacks
The MEB referred him to a Physical Evaluation Board (PEB), and, on 12 August 2011, the applicant concurred with the MEB's approved findings and recommendations.
4. The applicant's record does not contain PEB proceedings. However, the record does include U.S. Army Physical Disability Agency (USAPDA) Orders
D-030-02, dated 30 January 2012, the placing him on the Temporary Disability Retired List (TDRL) effective 5 March 2012, with a 90 percent disability rating.
5. On 1 March 2012, Boone National Guard Center, Frankfort, KY, issued Orders 061-865 honorably discharging the applicant from the ARNG and as a Reserve of the Army effective 4 March 2012.
6. His record is void of documentation showing what counseling he received prior to his placement on the TDRL.
7. He provides a DD Form 2656 showing:
* he elected not to participate in the SBP
* his signature, a witness signature, and his spouse's notarized signature, all dated 10 July 2012
* the witness signature is that of an SBP counselor at Fort Knox, KY
8. He provides an SBP/RSFPP Premium Bill, dated 28 March 2013, showing he owed $784.54 in SBP premiums.
9. 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. An election to decline to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse coverage (or child only coverage, if applicable).
10. Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouses written concurrence for a retiring members election that provided less than maximum spouse coverage.
DISCUSSION AND CONCLUSIONS:
1. The available evidence shows that, approximately 4 months after the effective date of his placement on the TDRL, the applicant attempted to elect not to participate in the SBP. His spouse concurred with the election.
2. The DD Form 2656 he provides supports his statement that he didn't get good advice at the time of his retirement. The SBP counselor who signed the form as a witness should have known that, because the applicant had retired approximately 4 months before the form was completed, his coverage had already defaulted to full spouse coverage. The SBP/RSFPP Premium Bill he provides indicates this is what happened.
3. It appears the applicant may have been deprived of the opportunity to make a timely election not to participate in the SBP. In light of the available evidence, it would be appropriate to correct his record to show he made a timely election not to participate in the SBP prior to his retirement.
4. As a result of the proposed correction, any debt he has incurred due to the default election for full spouse coverage should be cancelled.
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 he made a timely election not to participate in the SBP and cancelling
any debt he has incurred as a result of a default election for full spouse coverage.
_______ _ 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) AR20130003410
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ABCMR Record of Proceedings (cont) AR20130003410
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