IN THE CASE OF:	  

		BOARD DATE:	  2 September 2014

		DOCKET NUMBER:  AR20130019813 


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 his DD Form 2656-6 (Survivor Benefit Plan Election Change Certificate), signed on 16 July 2013, be changed to show he elected a change in Survivor Benefit Plan (SBP) coverage to spouse only based on the full amount of his retired pay within 1 year of his marriage.

2.  The applicant states he was physically and mentally unable to provide the appropriate documentation in a timely manner.

3.  The applicant provides:

* marriage certificate, dated 3 September 2011
* Combined Medical Power of Attorney and Living Will, dated 23 January 2013
* Consolidated Medical Records (CMR) provided by Ivan Walks and Associates, Silver Spring, MD
* a letter, dated 21 August 2013, from the Defense Finance and Accounting Service (DFAS)

CONSIDERATION OF EVIDENCE:

1.  On 30 August 1991, he was commissioned a second lieutenant in the U.S. Army Reserve (USAR).  On 16 January 1993, he was ordered to active duty with an active duty commitment of 3 years.

2.  On 1 February 2009, he was promoted to lieutenant colonel.  
3.   On 7 April 2010, an informal Physical Evaluation Board (PEB) found him unfit for duty due to a bipolar disorder since 2008 with comorbid cognitive disorder.  

	a.  The condition was unfitting due to lability of mood and sleeplessness which caused occasional difficulties with reduced reliability and productivity and impaired the reliable performance of his signal officer duties.  He had two psychiatric hospitalizations in September 2008 and September 2009 for auditory and visual hallucinations.  He was on two psychoactive medications.  Although he was admitted with severe psychotic symptoms on both psychiatric admissions his psychiatrist stated the applicant had responded very well to medications and had been in virtually complete remission since October 2009.

	b.  The PEB recommended a combined disability rating of 30 percent and that he be placed on the Temporary Disability Retired List (TDRL) with a reexamination during October 2011.

	c.  The applicant concurred with the findings of the PEB and waived a formal hearing of his case.

4.  On 13 May 2010, he submitted a DD Form 2656 (Data for Payment of Retired Personnel) that showed he was single and he elected not to participate in the SBP because he had no eligible dependents under the Plan.

5.  On 22 July 2010, he was retired and placed on the TDRL on 23 July 2010 with a disability rating of 30 percent.

6.  On 3 September 2011, he was married to his present wife.

7.  In March 2012, according to the CMRs provided by Ivan Walks and Associates, the applicant was diagnosed with Hashimoto encephalopathy (a neuroendocrine disorder in which antibodies attack neurons in the brain; symptoms include delusional behavior, disorientation, psychosis, and concentration and memory problems).

8.  On 23 January 2013, he gave his wife medical power of attorney.

9.  On 16 July 2013, he submitted a DD Form 2656-6 requesting a change from no coverage under the SBP to spouse only coverage under SBP based on the full amount of his retirement pay.  

10.  On 21 August 2013, DFAS denied his request to add his spouse to the SBP because they had not received notification of his marriage prior to his 1-year anniversary.

11.  On 3 September 2013, an informal PEB found him unfit for duty for Hashimoto encephalopathy, listed as bipolar disorder with psychotic features and cognitive disorder on the DA Form 3947 (Medical Evaluation Board Proceedings).  This condition was rated analogous to encephalitis.  

	a.  The applicant was not competent to participate in the PEB proceedings.  He had a medical power of attorney (POA) naming his wife and primary caregiver as his primary representative.  The PEB requested the applicant's POA review and sign the PEB on behalf of the applicant.  He was treated with prednisone and plasmaphoresis (the removal, treatment, and return of (components of) blood plasma from blood circulation).  The condition was considered chronic and remained unfitting, was considered stable for rating, and was rated for an active febrile disease.

	b.  The PEB recommended a combined disability rating of 100 percent and that he be retired due to permanent disability.

	c.  The applicant and his wife, as his POA, concurred with the findings of the PEB and waived a formal hearing of his case.

12.  On 11 September 2013, he was removed from the TDRL and permanently retired with a 100 percent disability rating.

13.  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.  Elections are made by category, not by name.

14.  Title 10, U.S. Code, section 1448(a)(5), provides that a person who is not married and has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP.  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date on which that person marries or acquires that dependent child.  The Defense Finance and Accounting Service interprets the phrasing of the first sentence of this section to read, "…is not married or has no dependent child."

DISCUSSION AND CONCLUSIONS:

1.  The applicant was not married at the time he was retired and placed on the TDRL on 23 July 2010.  He was married to his current spouse on 3 September 2011.  Therefore, he had 1 year from that date to enroll in the SBP and elect spouse only coverage based on the full amount of his retired pay.

2.  During the 1-year period from his date of marriage he was diagnosed with Hashimoto encephalopathy, a medical condition that affected his mental capacity and resulted in his ultimately granting his wife medical power of attorney in January 2013.  The PEB, dated 3 September 2013, stated he was not competent to participate in the PEB proceedings.

3.  In view of the applicant's questionable mental state during the 1-year period following his marriage it would be equitable to correct his records to show he completed the DD Form 2656-6 on 4 September 2011 electing spouse only SBP coverage based on the full amount of his retired pay.  Based on this correction the record should be changed to show the DD Form 2656-6 was submitted to and received by the Secretary concerned on 4 September 2011.

4.  Although relief is appropriate, the Board recognizes its fiduciary duty in protecting the viability of the SBP.  In order to grant relief, the Board recognizes that all SBP premiums due as a result of the above corrections must be paid into the SBP.  

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 he signed and submitted the DD Form 2656-6 on 4 September 2011 to add to his SBP election spouse only coverage based on the full amount of his retired pay and that the form was received by the Secretary concerned effective 4 September 2011.


2.  The applicant is responsible for payment of the SBP premiums due and payable as a result of these corrections.



      _______ _   __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)                                         AR20130019813



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ABCMR Record of Proceedings (cont)                                         AR20130019813



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