IN THE CASE OF:	   

		BOARD DATE:	  10 February 2015

		DOCKET NUMBER:  AR20140011356 


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 to withdraw from the Survivor Benefit Plan (SBP).

2.  The applicant states when he attended his retirement briefing in August/September 2013 he was married to Ewa and he was told she would be included on his SBP.  Their divorce proceeding was in progress and the final judgment and decree of total divorce was ordered on 15 November 2013.  On 
20 November 2013 he married Karina.  He was told his new wife's name would be added to the SBP.  It is now their decision to withdraw from SBP.

3.  The applicant provides:

* Final Judgment and Decree of Total Divorce, dated 15 November 2013
* certificate of marriage, dated 20 November 2013
* Spouse SBP Election Concurrence Statement, dated 22 May 2014 

CONSIDERATION OF EVIDENCE:

1.  After previously serving in the Regular Army and the Army National Guard, the applicant enlisted in the Mississippi Army National Guard on 28 July 2003.  He was ordered to active duty on 22 February 2008 and served continuously until his retirement.

2.  On 16 August 2013, an informal Physical Evaluation Board found him to be unfit for duty and recommended he be placed on the Temporary Disability Retired List (TDRL) with a combined disability rating of 100 percent.
3.  On 20 September 2013, he submitted a DD Form 2656 (Data for Payment of Retired Personnel) electing spouse only coverage for SBP based on the full amount of his retired pay.  Ewa is shown on the form as his spouse.

4.  On 15 November 2013, he was divorced from Ewa.

5.  On 20 November 2013, he married Karina.

6.  On 1 December 2013, he was retired and placed on the TDRL effective 
2 December 2013 with a 100 percent disability rating.

7.  On 9 January 2014, he submitted a DD Form 2656-6 (Survivor Benefit Plan Election Change Certificate) showing Karina as his spouse.  He elected spouse only coverage based on the full amount of his retired pay.

8.  A memorandum, dated 15 January 2014, from the Office of the Deputy Chief of Staff, G1 to the Defense Finance and Accounting Service (DFAS) informed DFAS the applicant's SBP spouse beneficiary was corrected to Karina, retroactive to the date of his retirement on 2 December 2013.  The 
DD Form 2652-6s which were not required but show his intention were included.

9.  A notarized statement, dated 22 May 2014, was signed by his spouse, Karina, concurring with the applicant's SBP election to decline SBP coverage.

10.  Department of Defense Instruction (DODI) 1332.42 provides responsibilities and procedures for administering the Survivor Annuity Program, which is comprised of the SBP.

	a.  A member on the TDRL is eligible to elect coverage until the member is no longer eligible for disability retired pay.

	b.  A member entitled to retired pay based on active service who has a spouse or dependent child is considered a participant having maximum SBP coverage, unless the member, with spousal concurrence if married, elects less-than-maximum spouse coverage, child-only coverage, or not to participate in SBP.

	c.  Written spousal concurrence is required when the member elects to decline coverage or provide the spouse with less than the maximum SBP coverage available, to include electing child-only coverage.

	d.  All SBP elections must be in writing, signed, and properly witnessed if
required.  All elections are irrevocable if not revoked before the date on which the person first becomes entitled to retired pay unless otherwise provided by law.

	e.  A member may elect to discontinue participation by submitting a 
DD Form 2656-2 (SBP Termination Request) during the period that is more than 2 years, but less than 3 years, after the first date of entitlement to receive retired pay.  The member must submit the request no earlier than the 1st day of the 
25th month, and no later than the last day of the 36th month from the date of entitlement to retired pay, with spousal concurrence if applicable.

DISCUSSION AND CONCLUSIONS:

1.  The original DD Form 2656 dated 20 September 2013 show the applicant's SBP election was for spouse only coverage based on the full amount of his retired pay.  Spouse concurrence was not required because he elected the maximum benefit. This election became irrevocable on 2 December 2013, the day he became entitled to retirement pay.

2.  He was divorced and remarried prior to the date he came entitled to retirement pay.  Therefore, Karina is the spouse beneficiary and the DD Form 2656-6, dated 9 January 2014 was not required.

3.  His request to discontinue SBP that was signed by his wife concurring with his request was not signed until 22 May 2014.  This was after the date he became entitled to retirement pay.  Therefore, his request was not valid.

4.  In view of the above there is an insufficient basis to grant relief in this case.

5.  He may elect to discontinue participation by submitting a DD Form 2656-2 during the period that is more than 2 years, but less than 3 years, after the first date of entitlement to receive retired pay.  He must submit the request no earlier than the 1st day of the 25th month, and no later than the last day of the 36th month from the date of entitlement to retired pay, with spousal concurrence if applicable. 

6.  He is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately so as to be prepared to submit his request to DFAS when eligible.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.



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)                                         AR20140011356



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ABCMR Record of Proceedings (cont)                                         AR20140011356



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