IN THE CASE OF:
BOARD DATE: 25 August 2015
DOCKET NUMBER: AR20140019284
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 termination of the Survivor Benefit Plan (SBP) coverage.
2. The applicant states the SBP was not explained to him prior to his retirement. He was medically retired for a service-connected disability with a 100-percent Department of Veterans Affairs (VA) rating. He does not need SBP. His complete SBP paperwork was not sent to the Defense Finance Accounting Service (DFAS) so he was automatically enrolled in the SBP program.
3. The applicant provides a copy of his VA Disability Evaluation System Proposed Rating and a notarized statement from his spouse indicating she also does not want to participate in SBP.
CONSIDERATION OF EVIDENCE:
1. The applicant's record contains documents showing he elected to participate in SBP prior to his retirement. However, he contends that he was not properly briefed about the effect of a permanent VA disability rating in regard to his participation in SBP.
2. On 19 June 2014, he received a 100 percent proposed service-connected combined disability rating from the VA as part of the Integrated Disability Evaluation System.
3. On 16 July 2014, the U.S. Army Physical Disability Agency approved the applicants informal physical evaluation board (PEB) finding him unfit for continued military service. He was granted an 80 percent disability rating and permanent disability retirement. The applicant concurred with these findings and did not request a formal PEB hearing or reconsideration of his VA ratings.
4. He was retired due to permanent disability and placed on the Retired List on 9 October 2014. His DD Form 214 shows he completed 17 years, 8 months, and 19 days of total active service. The highest rank and pay grade he held was chief warrant officer 2 (CW2).
5. 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.
6. Title 10, U.S. Code, section 1452(g), allows a retiree with a spouse who will be entitled to DIC to terminate SBP. The retiree must be rated 100-percent disabled by the VA for 5 continuous years from the date of last discharge from active duty, or 10 continuous years if the effective date of the 100-percent disability is after the retirement date. SBP premiums already paid will be refunded to the retiree's surviving spouse upon the retiree's death.
7. Participation in SBP of a person who submits a request shall be discontinued effective on the first day of the first month following the month in which the request is received by the Secretary concerned. Effective on such date, the Secretary concerned shall discontinue the reduction being made in such person's retired pay resulting from participation in the plan.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request for correction of his records to show he disenrolled from the SBP effective 9 October 2014, the date of his retirement was carefully considered and found to have merit.
2. The evidence of record shows the applicant elected to participate in SBP prior to his retirement and placement on the Retired List on 9 October 2014. He received a 100-percent service-connected disability rating from the VA as part of the Integrated Disability Evaluation System.
3. He contends that he was not properly counseled prior to his medical retirement and based on his 100-percent disability rating from the VA, he does not need the SBP coverage. In the preparation of his medical retirement it is reasonable to presume he was not adequately counseled and that he did not completely understand how his 100-percent disability rating would effect his need for the SBP coverage. For these reasons and the fact his spouse concurred with a declination of the SBP, and as a matter of equity, the applicant's record should be corrected to show he elected not to participate in the SBP, his spouse timely concurred with this election, and officials at DFAS timely processed the declination of SBP coverage prior to his date of retirement.
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:
* amending his DD Form 2656 to reflect he elected not to participate in the SBP
* showing his spouse concurred with this election
* refunding him all premiums paid
_______ _ _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) AR20140019724
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20140019284
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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