IN THE CASE OF:	 

		BOARD DATE:	  12 December 2013

		DOCKET NUMBER:  AR20130006751 


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) coverage.

2.  The applicant states he cannot afford the cost of his SBP coverage.  He states his retirement equates to $161.00 and his SBP coverage costs $113.00.  

3.  The applicant provides a signed and notarized statement from his spouse and a copy of his DD Form 2656-5 (Reserve Component SBP (RCSBP) Election Certificate).

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 29 December 1970.  

2.  On 6 February 1990, he enlisted in the Mississippi Army National Guard (MSARNG).  On 4 June 1990, he entered active duty for the purpose of completing his initial entry training.  

3.  On 7 September 1990, upon the completion of his initial entry training, he was awarded military occupational specialty (MOS) 13B (Cannon Crewmember) and was released from active duty to the control of the MSARNG.

4.  On 7 December 1990, he was mobilized in support of Operations Desert Shield and Desert Storm.  On 14 May 1991, he was honorably released from active duty and returned to the control of the MSARNG.
5.  On 25 August 2004, he was mobilized in support of Operation Iraqi Freedom. On 5 January 2006, he was honorably released from active duty and returned to the control of the MSARNG.

6.  On 26 September 2009, he married his current spouse, Sylvia.

7.  On 2 March 2010, the MSARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter).  This letter notified him that he had completed the required years of service and would be eligible for retired pay upon application at age 60.

8.  On 7 March 2010, he completed a DD Form 2656-5, wherein he indicated he was married to Sylvia and he had three additional dependents: 2 sons and a step-son.  He elected spouse only RCSBP coverage, Option C (immediate annuity), based on the full amount of his retired pay.  Since he did not elect child(ren) only coverage, coverage based on a reduced amount, or declined coverage, his spouse's concurrence with his election was not required.  His signature on this form is witnessed; however, there is no indication of the witness's military affiliation or relationship to the applicant. 

9.  On 28 June 2012, he underwent an informal Physical Evaluation Board (PEB) at Fort Sam Houston, TX, wherein the PEB found him physically unfit for further service with a combined disability rating of 80 percent (%).  The board recommended he be permanently retired by reason of physical disability.  On    16 July 2012, he concurred with that recommendation.

10.  Orders D219-01, issued by the U.S. Army Physical Disability Agency (USAPDA), Arlington, VA on 6 August 2012, ordered his release from active duty by reason of physical disability, and placement on the Retired List in the rank/grade of specialist (SPC)/E-4, effective 10 September 2012.

11.  Orders 277-829, issued by the MSARNG on 3 October 2012, discharged him from the ARNG and assigned him to the Retired Reserve, effective                    10 September 2012. 

12.  It is unclear if, in the processing of his disability retirement, he completed a DD Form 2656, wherein he would have elected or refused SBP coverage.

13.  An entry in the Soldier Management System (SMS), a tracking tool within the Interactive Web Service (IWS), shows that on 13 December 2012, he contacted a representative of the U.S. Army Human Resources Command (HRC) and requested assistance with the termination of his SBP coverage.  The HRC representative advised him to submit his request to the Defense Finance and Accounting Service (DFAS); however, it is unclear whether or not he did so.

14.  He submitted a signed and notarized statement from his spouse, dated      15 March 2013, wherein his spouse indicates she concurs with his desire to terminate his SBP coverage.  She states her understanding that she is waiving her rights to any future SBP benefits.  

15.  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.

16.  Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60.  

17.  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 begins, 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.  Subsequent to receiving his 20-year letter, the applicant submitted a DD Form 2656-5, wherein he elected enrollment in the RSCBP, spouse only coverage, under Option C.  This means in the event he died before reaching age 60, his beneficiary would have been entitled to an annuity.  

2.  Upon his processing for disability retirement, he should have completed a    DD Form 2656, wherein he would have either elected or refused SBP coverage.  It is unclear whether or not he completed this form.  It appears he may have been automatically enrolled, as he has been paying premiums for his SBP coverage since he began receiving retired pay.

3.  It now appears that the cost of SBP coverage has created a financial burden for him and his family.  It further appears he attempted to withdraw from the SBP almost immediately after he began receiving retired pay.  Given the short period between his retirement date and the date he applied for termination of his SBP participation, it appears he never intended to enroll in the SBP and his spouse concurred with his decision.  

4.  Therefore, although there is no statutory or regulatory error in this case, as a matter of equity only, his records should be corrected to show he completed a DD Form 2656 at the time he was processed for disability retirement, and in doing so, he elected not to participate in the SBP and his spouse concurred with his 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 he accurately completed the DD Form 2656, on or about             9 September 2012, wherein he elected not to participate in the SBP, and that his spouse properly concurred with his decision on the same date
* showing the Defense Finance and Accounting Service received and processed the DD Form 2656 in a timely manner, acknowledging the spouse's concurrence with the applicant's declination of the SBP 
* 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)                                         AR20110023565



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ABCMR Record of Proceedings (cont)                                         AR20130006751



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