BOARD DATE:	19 February 2014  

		DOCKET NUMBER:  AR20130010019 


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 that he declined SBP coverage when he retired from active duty with a temporary disability on 20 October 1996.  In 2009, his retirement disability was rescinded and he was given the appropriate disability rating.  In 2010, he elected SBP coverage and paid the invoices he received until June 2011.  In June 2011 he received a bill from the Defense Finance and Accounting Service (DFAS) that stated he had a "past due balance" of $4,321.18.  His previous bills showed $0.00.  He contacted DFAS and over the next several months corresponded with them in an unsuccessful attempt to have this corrected.  DFAS stated that the SBP was retroactive from the date of his initial separation.  However, as previously stated, he did not elect SBP coverage upon his initial retirement in 1996.  He did not have SBP coverage from October 1996 to 2010 and if he had expired during that time frame SBP would have not been paid to his spouse and/or next of kin.  

3.  The applicant provides:

* Three SBP premium bills, dated September 2010, June 2011, and May 2013
* Orders Number D164-15, dated 23 August 2002
* Orders Number D343-10, dated 9 December 2009
* Orders Number D343-11, dated 9 December 2009
* Letter, undated
* Letter, dated 31 March 2010
* Letter of spousal concurrence, dated 6 February 2014 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  After having previous enlisted service, the applicant was appointed as an aviation Reserve warrant officer on 13 March 1990 and entered active duty.  He attained the rank of chief warrant officer two (CW2).

3.  Orders Number 257-0013, issued by Headquarters, 101st Airborne Division (Air Assault), Fort Campbell, KY, show he retired on 20 October 1996 for a temporary disability, with a 30 percent (%) disability rating, and was placed on the temporary disability retired list (TDRL) on 21 October 1996.  

4.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably retired by reason of a temporary disability on 
20 October 1996.  

5.  Orders Number D164-15, issued by the U.S. Army Physical Disability Agency (USAPDA), Walter Reed Army Medical Center, on 23 August 2002, show he was removed from the TDRL and discharged from the U.S. Army effective 23 August 2002, with a 0% disability rating. 

6.  On 11 February 2009, the applicant applied to the Physical Disability Board of Review (PDBR).

7.  The PDBR reviewed his case and on 30 September 2009, the Deputy Assistant Secretary (Army Review Boards) (DASA (RB)) accepted the PDBR’s recommendations and directed that the applicant’s prior PEB determination be modified to show a combined 30% disability rating and that his discharge be recharacterized to reflect disability retirement effective the date of his medical discharge.

8.  Orders Number D343-10 issued by the USAPDA, on 9 December 2009 revoked Orders Number D164-15. 

9.  Orders Number D343-11 issued by the PDA on 9 December 2009 show he was removed from the TDRL on 20 October 2001 and permanently retired with a 30% disability rating on 21 October 2001.

10.  He provided a letter issued by DFAS on 31 March 2010, which indicated they had received the DASA’s directive and informed him that service members 
who retroactively become entitled to retired pay on a date after 20 September 1972 are automatically given full SBP coverage, unless the member elects to reduce the coverage or declines participation before the correction action (date of entitlement).

11.  He provided an undated letter from the Special Claims Processing/Retired and Annuity Pay office, DFAS.  The letter was issued in response to his inquiry on SBP coverage and states:

	a.  His current SBP election was "Declined" coverage and his current SBP premium cost was $0.00.  His previous coverage was set at "Automatic" SBP coverage at the time his account was built.

	b.  Service members who retroactively become entitled to retired pay on a date after 20 September 1972 are automatically given full SBP coverage, unless the member elects to reduce the coverage or declines participation before the correction action (date of entitlement).

	c.  DFAS examined the PDBR’s case and the DASA’s decisional document and found that he was to be afforded an opportunity to make an SBP election.  DFAS included a DD Form 2656 (Data for Payment of Retired Personnel) and asked the applicant to complete and return the form as soon as possible.

12.  His record does not contain the updated DD Form 2656 requested by DFAS.

13.  He provided three SBP premium bills, dated September 2010, June 2011, and May 2013.  The bill for May 2013 shows the amount due by 28 September 2010 was listed as $5,997.10.

14.  His spouse submitted an original notarized statement, dated 6 February 2014, wherein she indicated that she agreed with her husband's election to disenroll from the SBP. 

15.  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 election must be made prior to the effective date of retirement or else coverage automatically defaults to spouse coverage, if applicable.

16.  Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse's written concurrence for a retiring member's election that provides less than the maximum spouse coverage.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was retroactively retired on 
9 December 2009 with an effective date of 20 October 2001.  

2.  By law and regulation, married Soldiers who retire from the Army must take action to decline SBP coverage prior to retirement or in the applicant’s case, prior to the date of correction.  Otherwise, coverage defaults to "spouse coverage."  
Here, the applicant was retroactively retired on 20 October 2001.  He elected or received by default SBP coverage for spouse based on the full amount. 

3.  However, his application to the ABCMR clearly indicated that he is electing not to participate in the SBP.  On 6 February 2014 his spouse submitted an original notarized statement agreeing with the applicant's disenrollment request.

4.  Because this was a retroactive retirement, the applicant’s enrollment in the SBP became effective with his placement on the retired list effective 20 October 2001 thereby forcing him to pay for coverage he did not actually enjoy.  Therefore, in the interest of equity, the applicant's records should be corrected to show he elected not to participate in the SBP.  The applicant's spouse's vested interest in the SBP election has been satisfied through the submission of the notarized statement, dated 6 February 2014.







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 completed a DD Form 2656 electing not to participate in the SBP and that his spouse concurred with his decision, with any required notarizations, and that the form was accepted by the Defense Finance and Accounting Service prior to his 20 October 2001 retirement date; and

	b.  as a result of this correction, reimbursing him any premiums already paid.




      _______ _  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)                                         AR20130010019





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ABCMR Record of Proceedings (cont)                                         AR20130010019



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