IN THE CASE OF:	  

		BOARD DATE:	    9 September 2014

		DOCKET NUMBER:  AR20130019951 


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, in effect:

* he declined participation in the Survivor Benefit Plan (SBP)
* reimbursement of the premiums he has paid since December 2005
* his rank has been changed from first lieutenant (1LT)/O-2 to captain (CPT)/O-3 on the retired list under the provisions of Title 10, U.S. Code (USC), section 1372 

2.  He states, in effect:

	a.  His Retirement Services Officer (RSO) did not advise him that if he elected SBP in June 2013 he would have to pay the premiums back to his retroactive retirement date of December 2005.  

	b.  If he and his wife had known that this was the case, they would not have elected to start the SBP once his retirement was granted in 2013.  He would not have received the SBP benefit if he had died prior to his medical discharge being changed in 2013.

	c.  His rank was not properly adjusted based on the Army regulation.  





3.  He provides:

* Two DD Forms 2656 (Data for Payment of Retired Personnel)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* Two retirement orders
* Revocation orders
* Monthly Basic Pay Table
* Email
* Excerpt from Army Regulation 600-8-19 (Officer Promotions)
* MILPER Message Number 09-067

CONSIDERATION OF EVIDENCE:

1.  
2.  The applicant married his spouse R---a on 22 December 1999 and he was appointed as a Reserve second lieutenant/O-1 on 5 December 2002.  He served in Iraq from 11 November 2003 to 8 March 2004.

3.  He was promoted to 1LT/O-2 with an effective date and date of rank of 5 June 2004.

4.  He was honorably discharged on 16 December 2005 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3) due to disability with entitlement to severance pay based on a 20 percent (%) disability rating.  His DD Form 214 shows his rank and pay grade as 1LT/O-2.  At the time of his discharge, he had completed 3 years, 6 months, and 6 days of active service.  In view of the fact that he was not retiring at the time, he was not afforded pre-separation counseling on the SBP.  

5.  The Army Review Boards Agency Case Tracking System contains a Record of Proceedings which shows he submitted an application to the Department of Defense (DOD) Physical Disability Board of Review (PDBR) on 4 November 2011 requesting reevaluation of his medical conditions at the time of discharge.

6.  On 19 October 2012, the Deputy Assistant Secretary of the Army (DASA) Review Boards informed the Commander of the U.S. Army Physical Disability Agency (USAPDA) that the applicant's DOD PDBR request was approved.  As a result, it was directed the applicant's separation be recharacterized as a permanent disability retirement with the combined disability rating of 30% effective the date of the applicant's original medical separation for disability with severance pay.  The DASA directed that all Department of the Army records of the applicant be corrected accordingly no later than 120 days from the date of this memorandum (19 October 2012) by:

	a.  Providing a correction to the individual's separation document showing he was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing the applicant was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting his pay and allowances accordingly.  "Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay."

	d.  Affording the individual the opportunity to elect SBP and medical TRICARE retiree options.

7.  On 19 October 2012, the DASA (Review Boards) informed the applicant of the aforementioned approval of his request, the corrections that would be made to his service records, and that the DOD PDBR had been forwarded to the USAPDA and Defense Finance and Accounting Service (DFAS) for implementation.  He was also informed that these agencies would provide him an official notification by mail as soon as the above corrections were made and he would be provided information on his retirement benefits.  He was also advised that due to the large number of cases in progress, it could be several months before he received notification that the corrections were completed and his pay had been adjusted.  

8.  Headquarters, U.S. Army Garrison, Fort Benning, Orders 104-2202, dated 14 April 2013, released him from assignment and duty because of physical disability, effective 16 December 2005, and he was placed on the retired list on the following date.  These orders show his retired rank as a "1LT."

9.  On 20 May 2013, he was issued a DD Form 215 that amended the following items on his DD Form 214:

* Item 18 (Remarks) by deleting the entry "Disability Severance Pay - -$28,329.60"
* Item 23 (Type Discharge) "RETIREMENT"
* Item 25 (Separation Authority) "AR 635-40, PARA 4-24B(1)"
* Item 26 (Separation Code) "SFJ"
* Item 28 (Narrative Reason for Separation) "DISABILITY, PERMANENT//NOTHING FOLLOWS"

10.  In a letter dated 21 May 2013, the USAPDA informed him that corrections were made to his disability separation records and retirement benefits as a result of the approval by the DASA Review Boards.  This letter advised him that he should immediately contact the nearest installation RSO for assistance with completing the DD Form 2656 to activate his retired pay account and return a completed copy of this form to DFAS.

11.  He provided two copies of his DD Form 2656:

	a.  The first copy was signed by the applicant on 18 June 2013 and he placed an "X" in block 26a indicating he elected to participate in the SBP for spouse only coverage and that he had dependent children.  The form does not indicate the level of coverage.  

	b.  The second copy is not signed by the applicant.  He placed an "X" in block 26g indicating he elected not to participate in the SBP and he placed an "X" in block 27 (Level Coverage) indicating coverage based on full group pay.  His spouse signed block 32 (Spouse) of this form on 24 October 2013 and block 33 (Notary Witness) shows it was notarized on the same date.

12.  He provided an email, dated 25 June 2013, from Officer Promotions Management, U.S. Army Human Resources Command, which indicates he was selected by the Fiscal Year (FY) 2006 CPT Army Competitive Category Promotion Selection Board, which convened on 25 October 2005.

13.  Information received from DFAS revealed the applicant has spouse SBP coverage with children excluded, effective 17 December 2005.

14.  In an email, dated 5 September 2014, from the applicant's spouse, she concurred with his decision to decline participation in the SBP.

15.  Public Law 92-425, the SBP, enacted 21 September 1972, 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.  The election must be made prior to the effective date of retirement or else coverage automatically defaults to spouse coverage, if applicable.  

16.  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 coverage.  
17.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a one-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.  

18.  Title 10, U.S. Code, section 1372, states that unless entitled to a higher retired grade under some other provision of law, any member of an Armed Force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the temporary disability retired list (TDRL) under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following:

	a.  The grade or rank in which he is serving on the date when his name is placed on the TDRL or, if his name was not carried on that list, on the date when he is retired.

	b.  The highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the Armed Force from which he is retired.

	c.  The permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination.

	d.  The temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his records should be corrected to show he elected not to participate in the SBP and that he should be reimbursed all premiums he has paid are acknowledged.  There is sufficient evidence on which to grant partial relief.  

2.  The evidence of record shows the applicant was discharged on 16 December 2005 by reason of physical disability with severance pay.  He would not have been eligible to complete a DD Form 2656 electing SBP at that time.

3.  His service record shows the DOD PDBR recharacterized his separation on 19 October 2012 as a permanent disability retirement with a combined disability rating of 30 percent, effective the date of the applicant's original medical separation for disability with severance pay (i.e., 16 December 2005). 

4.  The evidence of record shows he completed two DD Forms 2656.  He signed the first DD Form 2656 on 18 June 2013 and elected to participate in the SBP for spouse only coverage.  As a result, he was enrolled in the SBP.  

5.  The second DD Form 2656 indicating both accepting and declining coverage was signed by his spouse and a notary witness on 24 October 2013, which is 
4 months later.  However, he did not sign this copy of the DD Form 2656.  

6.  The applicant's spouse provided an up-to-date concurrence with his cancellation request of his SBP election.

7.  Records at DFAS show he is enrolled in SBP for spouse only coverage, effective 17 December 2005.  

8.  It appears that it was the applicant's and his spouse’s intent to decline participation in the SBP.  Therefore, as a matter of equity, it would be appropriate to amend the applicant’s DD Form 2656 to show he declined to participate in the SBP in a timely manner.  By law, no premiums will be refunded to those who opt to disenroll from the SBP.  Therefore, the applicant is not authorized reimbursement of premiums already paid.

9.  The evidence of record shows he was selected by the FY06 CPT Army Competitive Category Promotion Selection Board, which convened on 25 October 2005.

10.  By law, the applicant is entitled to the permanent grade to which he would have been promoted had it not been for the physical disability for which he was retired.  Therefore, his records should be amended to reflect he was retired in the rank of CPT instead of 1LT.

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 partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  amending his DD Form 2656 to show he and his spouse signed the form in a timely manner declining to participate in the SBP and it was received and accepted for processing by the appropriate office, thus resulting in her never being enrolled in the SBP;

	b.  amending Orders 104-2202, dated 14 April 2013, to show his retired rank as CPT;  and 

	c.  paying him all back retired pay as a result of the above correction.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to reimbursing him all premiums he has already paid retroactive to 16 December 2005.




      _______ _   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)                                         AR20130019951



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ABCMR Record of Proceedings (cont)                                         AR20130019951



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