IN THE CASE OF:
BOARD DATE: 23 January 2014
DOCKET NUMBER: AR20130003728
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 his military records be corrected by canceling his Survivor Benefit Plan (SBP) participation for spouse and children coverage.
2. The applicant states:
a. he needs to disenroll from the SBP due to a misunderstanding or misinformation from his Retirement Services Officer (RSO).
b. he retired last month and found out that he will not be getting any retired pay because his Department of Veterans Affairs (VA) payment is more. He thought he was told he could change his SBP election in his first year if he decided to. When he completed the form, he did not know how much his retired pay would be and nobody could tell him how much he would get. Now he found out that he doesn't get anything so this will be an added bill.
c. he incurred a service-related injury while on active duty in Iraq as an Army Reservist. After returning from Iraq and returning back to Troop Program Unit status, he applied to the VA and received an 80% rating and he was also going through the disability system for separation from the Army due to the injury.
d. on 3 January 2013, he retired. Prior to retiring, he talked to his RSO and completed the SBP form and elected the plan that provided he would have one year to disenroll from the program. He thought the plan would be a good idea if he would make enough from his military retired pay to cover the expense. When he signed the paperwork enrolling in the program, he thought he understood that he had 1 year to decide if he wanted to keep the plan, if not he could disenroll. He is not getting any pay from his retirement because his VA payment is more than his retired pay would be. He needs life insurance for his family and he had no plans of paying both without his retired pay covering one of them. Now, he is being told he cannot back out of the SBP until 2 or 3 years from now.
e. this will cause financial hardship and was not what he had in mind. He just found out in mid-February 2013 from the retirement finance that he would not be getting any retired pay.
3. The applicant provides:
* DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 15 June 1994, 3 May 2004, 15 April 2006, and
5 February 2010
* Retiree account statements
* VA letter, dated 22 February 2013
* Retirement orders
* Spousal concurrence
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 13 June 1968. Having prior active service in the Regular Army, the applicant enlisted in the U.S. Army Reserve on 16 June 1994. He was promoted to sergeant first class on 1 May 2007.
2. On 28 October 2010, he received his notification of eligibility for retired pay at age 60 (his 20-year letter).
3. A DD Form 2656 (Data for Payment of Retired Personnel), dated
12 December 2012, shows he elected spouse and children coverage.
4. On 3 January 2013, he was released from duty because of permanent physical disability and placed on the retired list in the rank of sergeant first class.
5. He provides a notarized statement, dated 30 December 2013, from his spouse which shows she concurs with his election not to participate in the SBP.
6. Public Law 92-425, enacted 21 September 1972, established the SBP. 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.
7. 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 SBP. The spouse's concurrence is required. No premiums will be refunded to those who opt to disenroll. The effective date of termination is the first day of the first calendar month following the month in which the election is received by the Secretary concerned.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he received misinformation from his RSO. It appears he truly didn't understand since he applied to this Board so quickly after his pay settled out. Two years of SBP premiums is a lot for him to pay for what amounts to an honest mistake/misunderstanding.
2. Since his spouse concurs with his decision not to participate in the SBP, it would be equitable to correct his DD Form 2656 to show he elected not to participate in the SBP on 12 December 2012.
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 he elected not to participate in the SBP on his DD Form 2656, dated 12 December 2012 with his spouses notarized concurrence; and
b. reimbursing him any monies due 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) AR20130003728
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ABCMR Record of Proceedings (cont) AR20130003728
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