IN THE CASE OF:	  

		BOARD DATE:	  12 March 2015

		DOCKET NUMBER:  AR20140011119 


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 the records of her spouse, a retired service member, be corrected to show he elected Survivor Benefit Plan (SBP) coverage for "children only" vice "spouse and children." 

2.  The applicant states she has a power of attorney and she is handling his affairs due to traumatic brain injury (TBI) resulting from a stroke while he was on active duty.  She states they did not understand that there would be a cost for the SBP when they elected spouse and children coverage versus children only coverage.  Her husband retired by reason of permanent disability (100 percent).  They would have elected the children only option.  When the SBP was explained, they misunderstood.  When they said it was "free" she thought they meant "now." However, what they actually mean was "later."  The premiums are causing a financial hardship on the family.  When they received their first Retiree Account Statement, they realized the cost of this program would impact their financial situation.  Her husband was not allowed to travel due to his serious medical condition.  All of his outprocessing was done locally with the Maine Army National Guard (MEARNG).  The briefing was confusing and she thought that it was free.  Their budget was tight and she made it clear she did not want any money to come out of his check.  They simply cannot afford the premiums. 

3.  The applicant provides retirement orders and a power of attorney.




CONSIDERATION OF EVIDENCE:

1.  The service member previously served in the U.S. Marine Corps from 10 May 1988 to 9 November 1999.  He and Eugina were married on an unknown date.  They were divorced on 17 June 1991.  Their divorce decree is silent with respect to the SBP. 

2.  The former service member and Cynthia, the applicant, were married on 19 July 1997.  

3.  He enlisted in the MEARNG on 20 May 2008 and he held military occupational specialty 79T (Recruiter/Retention Noncommissioned Officer).  He executed multiple extensions in the ARNG and held the rank/grade of staff sergeant (SSG)/E-6. 

4.  He entered active duty on 1 August 2009.  He was assigned to the Recruiting and Retention Center, MEARNG, Augusta, ME.  It appears he entered the Army disability system at some point and a physical evaluation board recommended his permanent retirement at a 100 percent rating.  

5.  On 28 January 2014, he completed a DD Form 2656 (Data For Payment of Retired Personnel).  He indicated he was married to Cynthia, the applicant, and they had two dependent children, Sabrina, born in August 1997, and Thomas, born in April 1999.  He elected spouse and children SBP coverage based on the full amount.  He and a witness authenticated this form with their signatures.  

6.  He retired on 25 March 2014 and he was placed on the Retired List in his retired rank/grade of SSG/E-6 on 26 March 2014.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 years, 7 months, and 25 days of active service during this period.  

7.  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.

8.  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.

9.  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.  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 applicant, the spouse of a retired service member, contends her husband's records should be corrected to show he elected "children" SBP coverage vice "spouse and children" coverage.  

2.  The evidence of record shows the applicant submitted a DD Form 2656 wherein he elected, in the presence of a counselor/witness, to participate in the SBP for "spouse and children" coverage, based on the full amount.  Since he neither declined coverage nor elected a reduced amount, concurrence from his spouse (the applicant) was not required.  

3.  The decision to enroll in or disenroll from the SBP is a personal decision made by the service member at the time of retirement.  Here, there is no evidence the service member or applicant were not counseled or were led to believe this is a free program.  

4.  Nevertheless, by law, the service member has a one-year period beginning on the second anniversary of his receipt of retired pay to formally cancel his SBP coverage by completing the appropriate form and submitting it to the Defense Finance and Accounting Service (DFAS).  He retired on 25 March 2014.  His window of opportunity to cancel his coverage opens on or about 25 March 2016 and expires on or about 25 March 2017.  

5.  In the absence of an error or an injustice, there is no reason to grant the applicant the requested relief. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  ____x ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _____________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)                                         AR20140011119



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ABCMR Record of Proceedings (cont)                                         AR20140011119



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