IN THE CASE OF:	  

		BOARD DATE:	  2 April 2015

		DOCKET NUMBER:  AR20140011696 


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 military records to show he declined or terminated the Survivor Benefit Plan (SBP) spouse coverage.

2.  The applicant states:

	a.  He was only given 1 day to out-process from Fort Carson.  He received no training or education regarding the SBP.

	b.  He sustained a traumatic brain injury (TBI) as a result of an improvised explosive device (IED) in Iraq.  He suffers from extreme short-term memory loss and daily chronic migraines and he was sent to out-process by himself in 1 day.

	c.  He didn't even know he had signed up for the SBP; it was automatically deducted from his Army retired pay.  It wasn't until several months after his Department of Veterans Affairs (VA) pension superseded his Army pay that he received an enormous bill for SBP.  He called on several occasions to terminate this benefit when he couldn't catch up and was repeatedly denied.

	d.  This is causing him more stress than he can handle.  He is 100-percent totally and permanently disabled through both the Army and VA.  His wife will not need SBP due to Dependent and Indemnity Compensation.



3.  In the remarks section of his application, his wife states:

	a.  She is appalled at how poorly her husband was treated after being blown up in Iraq.  He is not the same man and will never be able to be a police officer again.  She had a small child at home and was unable to go with him to out-process.  He told her he was rushed through everything so they could get him home.  It made him feel like a burden.

	b.  He has a TBI and post-traumatic stress disorder (PTSD).  The way he was treated outrages her.

	c.  They tried to terminate this so-called benefit when they received a very large bill and discovered he had unknowingly signed up for the SBP.  She is the beneficiary.  She does not want it nor will she need it.

	d.  In the Congressional correspondence, it states an abundance of education is given before a Soldier signs up for SBP.  It didn't and couldn't happen in this instance.  Last May they were given a form to complete, but her father committed suicide on 15 May and her mother had knee replacement surgery, was diagnosed with breast cancer, and just finished treatment.  They tried to terminate the SBP again as it has been 5 years, but got the same rigid response months later – except now it is 10 years before they can terminate.  She cannot believe they are being forced to pay 10 years for a benefit she will not need and "they" want to keep the premiums until after her husband dies.  It seems greedy to her and not a benefit at all.  They are educated now.  It appears they have to get divorced or her husband has to die in order to terminate the SBP.

4.  The applicant provides:

* Congressional inquires
* letter from the Defense Finance and Accounting Service (DFAS), dated 29 May 2014
* DD Form 2656-2 (SBP Termination Request)

CONSIDERATION OF EVIDENCE:

1.  The applicant was ordered to active duty from the U.S. Army Reserve on 14 July 2006 in support of Operation Iraqi Freedom.  He served in Iraq from 15 September 2006 to 26 April 2007.

2.  His DD Form 2656 (Data for Payment of Retired Personnel) is not available for review.  However, in a Congressional inquiry, dated 6 May 2013, the applicant indicated he enrolled in the SBP on 21 January 2009.

3.  He retired on 21 January 2009 by reason of temporary disability and he was placed on the Temporary Disability Retired List (TDRL) effective 22 January 2009.  He was removed from the TDRL because of permanent physical disability (100-percent) and placed on the Retired List effective 26 March 2013.

4.  He provided a DD Form 2656-2, dated 28 February 2014.  Section I (Instructions) states:  "Applicability.  This form is used to voluntarily discontinue participation in the SBP.  In accordance with section 1448a of Title 10, United States Code, a participant in SBP may elect to discontinue participation during the 25th through the 36th month after commencement of payment of retired pay."  His spouse concurred with his decision to terminate participation in the SBP.

5.  He provided a letter from DFAS, dated 29 May 2014, responding to his request to withdraw from the SBP which states:

	a.  As previously stated, he is no longer eligible to terminate his coverage and/or costs.  To terminate SBP, a service member has a 1-year window to withdraw from SBP, beginning the 25th month through the 36th month after his or her first eligibility to receive retired pay.

	b.  In his case, his initial request was signed by him on 17 August 2012 and received on 10 September 2012.  Based on his retirement date of 21 January 2009, the receipt date of his initial request was 44 months post-retirement, and his current request to withdraw from the SBP is 62 months post-retirement.  Therefore, he is not eligible to withdraw based on the 25 to 36-month requirement.

	c.  He stated he would like to withdraw based on his VA disability rating of 100 percent.  In order to withdraw based on the 100-percent disability rule, he must have been rated as 100-percent disabled at the time of retirement and for not less than 5 continuous years thereafter or, if his rating was received from the VA post-retirement, his rating needs to be maintained for not less than 10 years.  At this time, he does not qualify for withdrawal based on the 100-percent disability rule.

6.  He also provided a letter from DFAS to a Member of Congress, dated 19 June 2014, which states:

	a.  DFAS previously reviewed the applicant's military retired pay account and answered a Congressional inquiry in May 2013.  DFAS also responded to the applicant's March 2014 request to disenroll from the SBP.

	b.  The facts of the applicant's case have not changed and he does not qualify to disenroll from SBP based on his disability rating from the VA at this time.  This was discussed in the aforementioned letters.

	c.  Information received from the VA shows the applicant was rated as 
100-percent disabled effective 1 December 2012.

	d.  Congress has authorized several SBP open season enrollment periods in the past during which a member is able to make a new SBP election or change his or her current election.  If the applicant wishes to withdraw from the SBP, he has the option to participate in the next open enrollment season; however, DFAS are unaware of any pending legislation to authorize a new open enrollment period at this time.

	e.  Each branch of service is responsible for providing proper information regarding the SBP to each service member as he or she separates and during his or her retirement.  Prior to retirement, the branch of service provides seminars and SBP counselors to educate the service member.

7.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members serving on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

8.  Public Law 96-402, enacted 9 October 1980 and effective 1 December 1980, established a withdrawal clause for members who were rated totally disabled by the VA.

9.  Title 10, U.S. Code, section 1452(g)(1), provides that a person who has elected to participate in the SBP and who is suffering from a service-connected disability rated by the VA as totally disabling and has suffered from such disability while so rated for a continuous period of 10 or more years (or, if so rated for a lesser period, has suffered from such disability while so rated for a continuous period of not less than 5 years from the date of last discharge) may discontinue participation in the plan.  Discontinuance is effective on the first day of the first month following the month in which the request is received.  Participation may not be discontinued without the written consent of the beneficiary or beneficiaries of the person.

10.  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 contends:

* he sustained a TBI as a result of an IED in Iraq
* he suffers from extreme short-term memory loss and daily chronic migraines
* he was only given 1 day to out-process from Fort Carson
* he received no training or education regarding the SBP

2.  The evidence shows he elected SBP spouse coverage prior to his disability retirement in January 2009.  Although he tried to terminate his SBP election in August 2012 and February 2014, these elections were invalid because he did not request termination during the designated time period listed in section I of his DD Form 2656-2.

3.  He is not eligible to disenroll from SBP under Public Law 96-402 since he has not held a 100-percent disability rating for at least 5 years.

4.  However, he was medically retired with a 100-percent disability rating based on his TBI and PTSD and suffers from extreme short-term memory loss.  Further, his spouse concurs with his request to terminate participation in the SBP.  Therefore, it would be equitable under these circumstances to correct his records to show he withdrew from the SBP on 21 January 2011 to be effective 1 February 2011.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 his DD Form 2656-2 with his spouse's concurrence was timely received and processed by the appropriate office;

	b.  showing he withdrew from the SBP on 21 January 2011 to be effective 1 February 2011; and

	c.  reimbursing him any monies due as a result of these corrections.



      ____________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)                                         AR20140011696



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ABCMR Record of Proceedings (cont)                                         AR20140011696



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