IN THE CASE OF:
BOARD DATE: 5 November 2013
DOCKET NUMBER: AR20130003413
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 Survivor Benefit Plan (SBP) participation.
2. The applicant states:
* he completed his DD Form 2656 (Data for Payment of Retired Personnel) over the phone with retirement services personnel in Fort Knox, KY
* he had no idea of the cost
* he needs help since he is not receiving his retirement check
* he is accruing debt and does not have the money to make installment payments
3. The applicant provides:
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Orders Number 229-818, issued by Boone National Guard Center, Frankfort, KY, dated 16 August 2012
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 November 2008
* DD Form 2656, dated 13 August 2012
* DFAS-CL 7220/148 (Retiree Account Statement), effective 2 December 2012
* notarized statement from spouse, dated 14 February 2013
* Army Board for Correction of Military Records (ABCMR) letter, dated 1 February 2013
CONSIDERATION OF EVIDENCE:
1. Prior to his retirement, the applicant completed his DD Form 2656 and elected spouse and children coverage based on the full amount of his retired pay. Spouse concurrence was not required because he did not elect less than the maximum coverage.
2. Section XI (Certification) of his DD Form 2656 shows the form was witnessed by his pastor on 13 August 2012.
3. On 10 September 2012, the applicant retired from the Army National Guard by reason of permanent disability due to a combat-related injury and was placed on the Retired List effective 11 September 2012.
4. He provides a signed/notarized statement from his spouse, dated 14 February 2013, wherein she concurs with his request to terminate SBP coverage and understands this decision is irrevocable.
5. 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.
6. In accordance with Title 10, U.S. Code, section 1448a, a participant in the SBP may elect to discontinue participation during the 25th through the 36th month after commencement of payment of retired pay.
7. 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 evidence shows the applicant elected SBP coverage for spouse and children prior to his disability retirement in September 2012. He first applied to the Board within weeks of receiving his first disability payment.
2. Because it does not appear he was on an Army installation at the time of his disability processing it appears he may not have been properly counseled regarding this program. Although this is not necessarily the Army's fault and there is no error in his records, since he applied immediately and his spouse has concurred with the decision to terminate SBP enrollment, as a matter of equity only, his records should be corrected to show he made an election to decline participation at the time he retired and his 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:
a. showing the applicant timely completed a DD Form 2656 electing not to participate in the SBP, and that his spouse properly concurred with his decision on the same date;
b. 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; and
c. 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) AR20130003413
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ABCMR Record of Proceedings (cont) AR20130003413
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