IN THE CASE OF:
BOARD DATE: 24 March 2015
DOCKET NUMBER: AR20140010466
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 Survivor Benefit Plan (SBP) coverage be terminated.
2. He states that on 24 December 2013 he was notified of his immediate retirement from the Army National Guard (ARNG). Shortly thereafter, he contacted the new Retirement Service Officer (RSO). However, due to the holiday season, his scheduled appointment was 10 January 2014, three days after his retirement date. He adds that he met with the RSO and signed his DD Form 2656 (Data for Payment of Retired Personnel). He says no one explained that the form needed to be signed and dated prior to his retirement date if he was not going to participate in SBP. He adds his spouse and he chose to waive SBP coverage and the form was submitted to the Defense Finance and Accounting Service on 7 February 2014. However, his first retirement pay statement and subsequent statement show an SBP deduction of $254.74.
3. He provides:
* Self-authored statement
* Retiree Account Statements (RAS)
* DD Form 2656
CONSIDERATION OF EVIDENCE:
1. After having prior enlisted service in the U.S. Marine Corps, the Air National Guard, and the ARNG, on 15 August 2009 the applicant was appointed as a second lieutenant in the Colorado ARNG.
2. A memorandum, dated 3 December 2013, notified the applicant that the
U.S. Army Physical Disability Agency found him to have a disability and he would be permanently retired with a 100 percent disability rating.
3. On 7 January 2014, he was medically retired in the rank of first lieutenant.
4. On 24 January 2014, the applicant completed a DD Form 2656 and he elected not to participate in the SBP. Under Section XII (SBP Spouse Concurrence) of the DD Form 2656, his spouse signed the form on 28 January 2014, indicating that she concurred with the SBP decision made by the applicant.
5. The applicant's RASs, dated 9 and 16 April 2014, show he is paying SBP coverage, spouse only, in the amount of $254.74.
6. Public Law 92-425, the SBP, enacted on 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. Elections are made by category, not by name. An election to decline to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse (or child only coverage, if applicable) coverage.
7. Public Law 105-85, enacted on 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 spouses concurrence is required. No premiums will be refunded to those who opt to disenroll. The effective date of termination is the first day of the first calendar month following the month in which the election is received by the Secretary concerned.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant signed his DD Form 2656 on
24 January 2014 and his spouse signed the form on 28 January 2014, electing not to participate in the SBP.
2. The evidence of record shows there were less than 35 days from the date he was notified of his disability retirement to the date he was actually retired. Taking into consideration that his notification (3 December 2013) and his subsequent retirement date (7 January 2014) were during the Christmas/New Year holiday period, it is reasonable to believe that this period interfered with his and his spouse's ability to decline and sign the DD Form 2656 prior to his retirement date. Therefore, in the interest of equity, it would be appropriate to correct his records as recommended below.
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 declined SBP participation with his spouse's concurrence and notarized on 6 January 2014 and that his request was received and processed by the appropriate office in a timely manner and
b. refunding him any SBP premiums already deducted from his retired pay due him as a result of the above correction.
___________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) AR20140010466
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