IN THE CASE OF:
BOARD DATE: 3 June 2014
DOCKET NUMBER: AR20130013734
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 correction of his records to show he elected not to participate in the Survivor Benefit Plan (SBP).
2. The applicant states, in effect, that while he was out-processing from the wounded warrior project he was counseled by a Retirement Services Officer and told that SBP premiums would cost him about $50 per month, so they signed up. When he got the official statement from the Defense Finance and Accounting Service (DFAS) his SBP premiums were $265.74. He immediately tried to cancel, but he was told his election was irrevocable.
3. The applicant provides copies of his
* 6 December 2012 retirement orders and a 27 March 2013 amendment thereto changing his retired rank to major
* 27 March 2013 DD Form 214 (Certificate of Release or Discharge from Active Duty) and DD Form 215 (Correction to DD Form 214)
* DD Form 2656 (Data for Payment of Retired Personnel)
* a 18 July 2013 letter from his spouse
CONSIDERATION OF EVIDENCE:
1. The applicant retired due to combat incurred disabilities on 27 March 2013.
2. There is no DD Form 2656 filed in the applicant's integrated Personnel Electronic Records Management System.
3. The applicant provides
* a notarized DD Form 2656 indicating "I elect not to a participate in SBP" His spouse concurs. The signatures are witnessed and notarized
* a notarized letter from his spouse that essentially duplicates his description of the events that occurred
* the notarized letter also shows the applicant's spouse supports the request to decline SBP and acknowledges that she understands the decision is irrevocable
4. 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. An election, once made, was irrevocable except in certain circumstances. This law also provides that every member having a spouse and/or child(ren), who retired/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list.
5. 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 retired on 27 March 2013. Prior to his retirement, he decided to participate in the SBP based, per his and his spouses statements, on an unrealistically low estimate of the monthly premium given to him by a government representative.
2. Had the applicant received accurate information he and his spouse would have declined to enroll in the SBP. Therefore, as a matter of equity, his records should be corrected to show he elected not to participate in the SBP, his spouse concurred with this election, and DFAS timely processed it.
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 the applicant timely completed a DD Form 2656 electing not to participate in the SBP prior to his retirement, and that his spouse properly concurred with the decision on the same date
* showing that DFAS timely received and processed the applicant's DD Form 2656 declining SBP coverage with his spouse's concurrence
* reimbursing the applicant all premiums paid 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) AR20130013734
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20130013734
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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