BOARD DATE:	  3 December 2014

		DOCKET NUMBER:  AR20140004537 


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 records to show he elected not to participate in the Survivor Benefit Plan (SBP).

2.  The applicant states he has tried several times to terminate his SBP through the Defense Finance and Accounting Service (DFAS) but was unsuccessful.

3.  The applicant provides a DD Form 2656 (Data for Payment of Retired Personnel), page 2 of a DD Form 2656, and a letter.

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving as a member of the U.S. Army Reserve (USAR) in the rank/grade of staff sergeant (SSG)/E-6.  He was ordered to active duty as a member of his USAR unit in support of Operation Enduring Freedom (OEF) and he entered active duty on 15 March 2003.  

2.  He served in Kuwait/Iraq from 13 May to 5 July 2003 in support of OEF.  On 2 February 2004, a physical evaluation board (PEB) convened and determined his conditions of cervical pain and low back pain, each rated at 10 percent (%) for a combined rating of 20%, were medically unacceptable and recommended he be discharged with entitlement to severance pay.

3.  He was honorably discharged on 23 March 2004 in the rank SSG by reason of disability with entitlement to severance pay.  The DD Form 214 (Certificate of Release) he was issued for this period of service shows he received $61,815.60 in severance pay.

4.  In a letter to the applicant, dated 9 July 2012, from the Army Review Boards Agency, he was notified that based on the Department of Defense Physical Disability Board of Review's recommendation, his separation would be reclassified to a disability retirement with a combined disability rating of 30%, effective the date of his separation (23 March 2004).

5.  In a letter to the applicant, dated 25 January 2013, from the U.S. Army Physical Disability Agency, he was notified, in part, that:

* his original separation order had been revoked and an order permanently retiring him with 30% disability had been published
* DFAS would provide him with retired pay and allowances effective the date of his original separation and recoup any severance pay paid
* he should immediately contact the nearest Retirement Services Officer (RSO) for assistance in completing the DD Form 2656 and to provide him retirement and SBP counseling

6.  On 12 February 2013, a DD Form 215 was issued that corrected the applicant's DD Form 214, dated 23 March 2004, by deleting the entry showing he was discharged by reason of disability with severance pay - $61,815.60, and adding an entry to show that he was retired [on 23 March 2004] by reason of permanent disability.

7.  In an email, dated 21 October 2014, an official with DFAS confirmed the applicant had SBP for spouse and children.  The DFAS official provided the DD Form 2656 they had on file for the applicant.  This DD Form 2656, dated 18 February 2013, shows the applicant indicated he had a spouse, Jeanne, and two dependent children; the children were born on 27 December 1995 and 11 April 1991, respectively.  He elected not to participate in the SBP and signed the form on 19 February 2013.  His spouse signed the form on 19 February 2013 indicating she concurred with his SBP election and her signature was witnessed by a notary public on that date.  The applicant also provided a copy of this form.

8.  The applicant provides a letter to his Representative in Congress, dated 25 February 2014, from DFAS, in response to an inquiry on his behalf.  The DFAS official stated the applicant was issued orders on 25 January 2013, permanently retiring him effective 24 March 2004.  He had 90 days from the date of the letter to complete and return a DD Form 2656 on which he could make an SBP election.  They received a DD Form 2656, dated 12 March 2013, indicating he elected spouse and child coverage.  This form was the latest one they received within the 90-day window.  He may ask the Army Board for Correction of Military Records (ABCMR) to correct his military records to reflect that he declined coverage.  They did not have the authority to change his retired pay account without authorization from the ABCMR.

9.  The DFAS office that wrote the letter described above provided the DD Form 2656 they had on file for the applicant.  This DD Form 2656, dated 12 March 2013, shows the applicant indicated he had a spouse, Jeanne, and two dependent children; the children were born on 27 December 1995 and 11 April 1991, respectively.  He elected SBP coverage for spouse and children but did not indicate the level of coverage he was requesting.  He also filled in block 28 (Insurable Interest Beneficiary) of this form and listed an adult daughter born on 13 April 1981.  He signed this form on 13 March 2013.

10.  The applicant also provides page 2 of a DD Form 2656, dated 5 September 2013, wherein it shows he elected not to participate in the SBP.  He signed this form on 5 September 2013.  His spouse signed the form on 5 September 2013 indicating she concurred with his SBP election and her signature was witnessed by a notary public on that date.

11.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that in conjunction with his retirement processing in February 2013, the applicant executed a DD Form 2656 on 19 February 2013, electing not to participate in the SBP which is on file at DFAS. At the time, he was married and had two dependent children.  His spouse concurred with his election and her signature was notarized.  

2.  He then completed a second DD Form 2656 on 12 March 2013 wherein he elected SBP for spouse and children.  He did not indicate the level of coverage he desired and also listed an insurable interest on this form.  DFAS received this form, processed it, and he currently has SBP coverage for spouse and children.

3.  It is unclear why DFAS processed the DD Form 2656, dated 12 March 2013, as the form is not completed correctly.  It is contradictory as it shows an SBP election for spouse and children but lists an insurable interest beneficiary and does not indicate the desired level of coverage elected.  
4.  In September 2013, the applicant’s spouse again concurred with his election to decline SBP coverage.  Therefore, as a matter of equity, it would be appropriate to correct his records to show that in conjunction with his retirement DFAS accepted and processed his DD Form 2656, dated 19 February 2013, wherein he elected not to participate in the SBP.

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:

* voiding the applicant's DD Form 2656, dated 12 March 2013
* showing at the time of his retirement, DFAS accepted and processed his DD Form 2656, dated 19 February 2013, wherein he elected not to participate in the SBP and his spouse concurred with his election
* paying him any monies already deducted from his retired pay for SBP coverage



      _______ _ 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)                                         AR20140004537





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ABCMR Record of Proceedings (cont)                                         AR20140004537



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