IN THE CASE OF:	  

		BOARD DATE:	   25 June 2015 

		DOCKET NUMBER:  AR20140018652 


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 cancellation of his Survivor Benefit Plan (SBP) participation.

2.  The applicant states:

* the SBP premiums increased from $55.32 per month to $99.92 per month; this steep increase was applied to his 54th payment, well after the cancellation period
* he spoke with officials at the Defense Finance and Accounting Service (DFAS) but there was little they could do for him; the experience with DFAS and the SBP program has been negative and unprofessional 
* he was medically retired in 2009 due to post-traumatic stress disorder (PTSD) and traumatic brain injury

3.  The applicant provides his October 2014 Retiree and Account Statement. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he enlisted in the Regular Army on 7 May 2004 and he held military occupational specialty 11B (Infantryman).  He served in Iraq from October 2006 to November 2007. 

3.  A physical evaluation board convened on 20 May 2009 and recommended his placement on the temporary disability retired list (TDRL) at a combined rating of 50 percent for PTSD.  He concurred. 

4.  On 10 June 2009, in connection with his medical retirement, he completed and submitted a DD Form 2656 (Data for Payment of Retired Personnel).  He indicated he was married to Kimberly as of 13 January 2008.  He elected SBP coverage for spouse based on the full gross pay.  He was counseled by a Retirement Services Officer at Fort Richardson, AK.  

5.  He retired on 27 August 2009 and he was placed on the TDRL in his retired rank/grade of sergeant/E-5 on 28 August 2009.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 5 years, 3 months, and 21 days of active service.  

6.  Following a TDRL examination on 14 August 2014, a TDRL PEB convened and recommended his permanent retirement at a combined rate of 70 percent.  He concurred.  

7.  On 4 September 2014, the U.S. Army Physical Disability Agency published Orders D247-03 removing him from the TDRL and permanently retiring him effective 28 August 2014.   

8.  He provides his October 2014 Retiree and Account Statement that shows he previously paid the amount of $55.32 on 21 July 2014 and the amount of $99.92 was due by 28 October 2014. 

9.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election, once made, was irrevocable except in certain circumstances.  This law also provides that every member having a spouse and/or child(ren), who retired/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list.

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.  In connection with his disability retirement, at a combined rating of 50 percent, the applicant completed a DD Form 2656 and elected participation in the SBP program for spouse coverage based on the full amount.  He retired on 27 August 2009.  He began paying premiums based on his gross retired pay. 

2.  He was considered by a TDRL PEB that recommended his permanent retirement at a higher disability rate of 70 percent.  Consequently, his retired pay increased.  The SBP monthly premium depends on the category (spouse, former spouse, child(ren), or insurable interest).  In the applicant's case, he paid premiums at a fixed percentage of his gross retired pay.  If and when the gross pay increases, the premiums increase.  

3.  The options to participate or decline participation in the SBP were clear and are clearly stated on the form he executed in 2009.  The decision to participate in or disenroll from the SBP is a personal decision.  

4.  By law, 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.  

5.  The applicant retired on 27 August 2009.  By statute, the only timeframe he could have terminated SBP participation would have been the 1-year period from 27 August 2011 to 26 August 2012.  He did not do so.  The stipulation to cancel the SBP within a 1-year period beginning on the second anniversary of the date on which retired pay starts is embedded in the law and a change to this law is not within the purview of this Board.  In view of the foregoing evidence, there is an insufficient basis for granting him 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)                                         AR20140018652





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ABCMR Record of Proceedings (cont)                                         AR20140018652



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