IN THE CASE OF:
BOARD DATE: 3 June 2014
DOCKET NUMBER: AR20130012738
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, in effect, correction of his records to show he declined participation in the Survivor Benefit Plan (SBP) at the time he was placed on the Temporary Disability Retired List (TDRL).
2. The applicant states he and his spouse declined to participate in the SBP; however, his paperwork was not properly forwarded to the Defense Finance and Accounting Service (DFAS) and he was automatically enrolled in the SBP and has accumulated a debt to DFAS. He attempted to disenroll with his wifes concurrence and had to wait for the window to do so. He should not owe anything to DFAS because he never agreed to participate in the SBP.
3. The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), retirement orders, correspondence from DFAS, and copies of his DD Form 2656-2 (SBP Termination Request).
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 29 May 2002 for a period of 3 years and training as a track vehicle mechanic.
2. He served in Iraq during the periods 20030102 20040104 and 20050307 20060213.
3. On 26 June 2010, he was honorably retired by reason of Disability Temporary. He had served 8 years and 28 days of active service. The applicant was enrolled in the SBP with full spouse coverage.
4. On 13 June 2011, in response to a request from the applicant requesting to terminate his enrollment in the SBP, DFAS informed the applicant that he could not terminate his SBP until he was between 25 and 36 months after retirement.
5. A review of the available records failed to show the applicants original SBP election.
6. On 1 August 2012, the applicant was permanently retired with a 60% disability rating.
7. On 16 November 2012, the applicant was disenrolled from the SBP and had a debt to DFAS in the amount of $2,732.29 for unpaid SBP premiums and interest.
8. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. Election of beneficiaries is made by category only, not by name. Except as provided by law, an election, once made, is irrevocable. Elections received that have not been properly completed result in an automatic full coverage election based on the individual's dependents at the time
9. 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 provided less than maximum spouse SBP coverage.
10. Title 10, U.S. Code, section 1448 provides that effective 1 March 1986, a married member is enrolled with spouse coverage on full retired pay at the time of retirement unless that spouse has concurred in writing to another election requested by the member pursuant to Department of Defense Financial Management Regulation, volume 7B, chapter 43. When the spouse's concurrence is required, the signature indicating concurrence must be corroborated by one or more witnesses.
11. 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 the SBP. The spouse's concurrence is required. No premiums will be refunded to those who opt to disenroll.
DISCUSSION AND CONCLUSIONS:
1. The applicant claims he and his spouse signed a DD Form 2656 electing not to participate in the SBP; however, the applicant has not provided and his records do not contain the form.
2. The applicant's contention that the DD Form 2656 completed by him and his spouse was not forwarded to DFAS by the transition point at the time of his retirement was carefully considered and while the sincerity of his claim is not in doubt, without a copy of the form in question or independent evidence such as a statement from the transition point official personally involved in both executing the form and transmitting it to DFAS, there is no way to verify that such was the case.
3. Since he failed to provide sufficient evidence to show he and his spouse opted out of participation in the SBP at the time of his separation it appears that his debt to DFAS is a valid debt.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X____ ____X____ ____X____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism. The applicant and all Americans should be justifiably proud of his service in arms.
_______ _ __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) AR20130012738
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ABCMR Record of Proceedings (cont) AR20130012738
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