IN THE CASE OF:
BOARD DATE: 11 June 2014
DOCKET NUMBER: AR20130016683
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 record to show he elected not to participate in the Survivor Benefit Plan (SBP).
2. The applicant states that in December/January 2011 he out-processed at Fort Drum, NY prior to medical retirement. He becomes very distressed when he is in public due to his medical conditions. During his SBP briefing he began to have a panic attack and wanted to leave. He explained that he was not interested in the SBP. His wife agreed to sign away her right to the benefit because they did not want the SBP. The employee conducting the SBP brief continued to repeatedly pressure him even though he stated he did not want to participate in the SBP three times. He felt like he would not be able to leave until he signed the contract. He signed the contract just to get out of the room because he felt like he was about to die. He feels he was pressured and coerced into signing the SBP contract and now wants to cancel his SBP because he and his wife are on a fixed income and cannot afford the expense.
3. The applicant provides:
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* SBP Premium Bill, dated April 2013
* DD Form 2656 (Data for Payment of Retired Personnel), dated 30 August 2013
* Notarized letter for the applicants spouse, dated 30 August 2013
CONSIDERATION OF EVIDENCE:
1. On 3 January 2008, the applicant enlisted in the Regular Army and held military occupational specialty 11B (Infantryman).
2. His record does not contain Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) Proceedings or a DD Form 2656. However, an e-mail from the Defense Finance and Accounting Service, dated 19 May 2014, confirms the applicant elected spouse only SBP coverage on his DD Form 2656.
3. Orders Number 018-1000, issued by Headquarters, U.S. Army Garrison, Fort Drum, NY, dated 18 January 2011, released him from his assignment because of a physical disability and directed that he be retired in the rank/grade of private/ E-1 with a 100 percent (%) disability rating. He was placed on the Temporary Disability Retired List (TDRL), effective 27 January 2011.
4. His DD Form 214 shows he was honorably retired by reason of a temporary disability on 26 January 2011.
5. He provided an SBP premium bill, dated April 2013, which shows he had accumulated SBP premiums in the amount of $1,557.12 as of April 2013.
6. He provided a notarized DD Form 2656, dated 30 August 2013. This form shows he elected not to participate in the SBP. He and his spouse signed the document on 29 August 2013 and the notary official signed and notarized it on
30 August 2013.
7. His spouse signed a notarized statement, dated 30 August 2013, wherein she waived her rights to the SBP annuity and indicated she agreed with the applicants decision not to participate in the SBP. She also stated her husband told the SBP counselor they did not want to participate in the SBP numerous times. However, he was repeatedly pressured and his request to decline SBP coverage was ignored. He began having a panic attack and eventually signed the SBP contract as a result of the pressure the SBP counselor was applying.
8. 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.
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 provides less than the maximum spouse coverage.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant initially elected spouse only SBP coverage, was retired on 26 January 2011, and was placed on the TDRL on
27 January 2011.
2. By law and regulation, married Soldiers who retire from the Army must take action to decline SBP. Here, it appears the applicant began having a panic attack due to his medical condition and felt pressured to agree to participate in the SBP.
3. However, his application to the ABCMR clearly indicates that he is electing not to participate in the SBP. His spouse submitted a notarized statement agreeing with the applicant's election.
4. 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.
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 26 January 2011 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) AR20130016683
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ABCMR Record of Proceedings (cont) AR20130016683
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