BOARD DATE: 6 May 2014
DOCKET NUMBER: AR20130013953
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 that when he was placed on the Temporary Disability Retired List (TDRL) he elected full spouse and child coverage and was subsequently removed from the TDRL and was discharged with severance pay. However, the Board subsequently approved the findings of the Department of Defense Physical Disability Board of Review (PDBR) to revoke the discharge and permanently retire him with a 30 percent disability rating effective the date he was discharged. Because he was retired retroactively, he was denied the opportunity to withdraw from the SBP on the first anniversary. His wife concurs with the decision to withdraw from the SBP.
3. The applicant provides a one-page letter explaining his application, orders placing him on the TDRL, his original separation orders, a memorandum reinstating him in the SBP, and documents showing he was retired by reason of permanent disability.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 21 July 1993. He completed his basic training at Fort Knox, Kentucky and his advanced individual training as a personnel service specialist and remained on active duty through continuous reenlistments. He was promoted to the pay grade of E-5 on 12 June 1997.
2. On 13 August 2001, he was honorably retired under the provisions of Army Regulation 635-40 due to disability, temporary. He was placed on the TDRL effective 14 August 2001 with a 30 percent disability rating. He was enrolled in the SBP with full spouse and child coverage.
3. On 5 November 2002, he was removed from the TDRL and was discharged with severance pay.
4. On 17 April 2013, the applicants discharge was revoked based on a recommendation by the PDBR to retire him permanently with a 30 percent disability rating effective 5 November 2002.
5. On 22 May 2013, the office of the Deputy Chief of Staff, G1, requested that the Defense Finance and Accounting Service (DFAS) reinstate the applicants SBP election made by the applicant when he was placed on the TDRL.
6. On 23 July 2013, the applicants spouse concurred, in a notarized statement, with his request to terminate the SBP.
7. 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.
8. 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 applicants contention that he should be allowed to withdraw from the SBP has been noted and appears to have merit.
2. The applicant was originally placed on the TDRL on 14 August 2001. He was removed from the TDRL and was discharged on 5 November 2002.
3. On 17 April 2013, the applicants discharge was revoked and he was permanently retired with a 30 percent disability rating retroactive to 5 November 2002.
4. As a result of his retroactive retirement, he was denied the opportunity to withdraw from the SBP on the second anniversary of the date on which his retired pay started.
5. Therefore, since his wife has provided a statement of concurrence, he should be allowed to withdraw from the SBP on the second anniversary of the date on which his retired pay started.
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 that he, with his spouses concurrence, elected to withdraw from the SBP on the second anniversary of the date on which his retired pay started.
_______ _ 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.
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