IN THE CASE OF:
BOARD DATE: 6 February 2014
DOCKET NUMBER: AR20130007142
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. The applicant states:
* he never received correct, complete SBP counseling
* he was never shown any slides that are directed by the U.S. Army Human Resources Command (HRC) by a counselor
* he made the incorrect election based on his counseling and he was never informed he could have made an election with the concurrence of his spouse to receive SBP coverage at a reduced amount or decline SBP coverage
* all means have been exhausted to correct this error
3. The applicant provides:
* Orders Number D-03-790063, issued by HRC, dated 7 March 2007
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders Number D-07-790063R, issued by HRC, dated 14 March 2011
* Orders Number C-03-190217, issued by HRC, dated 14 March 2011
* Orders Number D084-21, issued by the U.S. Army Physical Disability Agency (USAPDA), Washington, D.C., dated 25 March 2011
* DD Form 215 (Correction to DD Form 214)
* Orders Number D208-17, issued by USAPDA, dated 26 July 2012
* Letter from the USAPDA, dated 31 July 2012
* Orders Number D213-41, issued by USAPDA, dated 31 July 2012
* SBP/RSFPP (Retired Serviceman's Family Protection Plan) Premium Bill, dated February 2013
* Notarized statement, dated 29 January 2014
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the U.S. Army Reserve on 22 November 1999. He completed training and was awarded military occupational specialty 88M (Motor Transport Operator).
2. On 17 April 2007, the applicant was honorably discharged with severance pay and a disability rating of 10 percent.
3. On 31 January 2011, the Physical Disability Board of Review (PDBR) reviewed the applicant's record and recommended that he be permanently retired with a total combined disability rating of 40 percent.
4. On 2 February 2011, the Deputy Assistant Secretary, Army Review Boards Agency, approved the PDBR's recommendation. On the same date, the applicant was notified of the decision.
5. On 14 March 2011, HRC published Orders Number D084-21 placing the applicant on the Temporary Disability Retired List (TDRL) retroactively effective 18 April 2007.
6. On 25 March 2011, the USAPDA published Orders Number D084-21 removing the applicant from the TDRL and permanently retiring him on 17 October 2007.
7. On 28 March 2011, the USAPDA notified the applicant of the corrections to his records and his entitlements. The applicant was instructed to contact the nearest installation Retirement Services Officer (RSO) for assistance in completing a DD Form 2656 (Data for Payment of Retired Personnel) to activate his retired pay account and to receive SBP counseling.
8. A review of the applicant's record shows a DD Form 2656 was completed and provided to the Defense Finance and Accounting Service (DFAS) on 5 May 2011. The form shows the following:
* the applicant elected coverage for spouse and children
* it was not authenticated by the applicant, his spouse, the RSO or witness
* the form is undated
9. The applicant provides a copy of his SBP/RSFPP Premium Bill for February 2013 which shows he owes $5,574.30 in SBP premiums. He also provides a notarized statement from his spouse showing her concurrence to opt out of the SBP.
10. 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).
11. 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.
12. Title 10, U.S. Code, Section 1448, provides that if a person makes an election not to participate in the SBP, the person's spouse shall be notified of that election. Spousal concurrence is needed only when a married person elects to provide an annuity for his spouse at less than the maximum level or to provide an annuity for a dependent child but not for his spouse.
DISCUSSION AND CONCLUSIONS:
1. On 17 April 2007, the applicant was discharged for disability. In 2011, his discharge was changed to placement on the TDRL. On 25 March 2011, orders were issued permanently retiring the applicant retroactively to 17 October 2007.
2. Since the applicant's permanent retirement was retroactive there is no way he could have made a timely election to withdraw from the SBP. Therefore, since he provides his spouse's concurrence, it would be appropriate at this time to show he elected to withdraw from the SBP in a timely manner.
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 to show he elected, with his spouses notarized concurrence, not to participate in the SBP in a timely manner.
_______ _ __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) AR20130007142
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ABCMR Record of Proceedings (cont) AR20130007142
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