IN THE CASE OF:	  

		BOARD DATE:	  14 July 2015

		DOCKET NUMBER:  AR20140019724 


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 Survivor Benefit Plan (SBP) coverage.

2.  The applicant states, in effect, that he was not properly advised or counseled prior to enrolling in the SBP and he immediately attempted to correct this error.  However, in pursuing this matter valuable time elapsed and he was given wrong information on how to resolve the matter.  As a result, the SBP premiums have placed a burden on his budget and overall finances.

3.  In an earlier request, the applicant stated that the Department of Veterans Affairs (VA) rated his service connected disability at 100-percent immediately after he retired which made his spouse eligible for the Dependency and Indemnity Compensation (DIC) upon his death.  Therefore, the SBP offers no financial benefit. 

4.  The applicant provides:

* a notarized spousal consent letter
* VA Disability Compensation Letter
* DD Form 2656-2 (SBP Termination Request)
* DD Form 2656 (Data for Payment of Retried Personnel)
* DD Form 214 (Certificate of Release or Discharge from Active Duty), effective 30 September 2012



CONSIDERATION OF EVIDENCE:

1.  On 4 June 2012, in anticipation of his upcoming retirement, the applicant completed a DA Form 2656.  This form shows he elected "spouse only" SBP coverage based on his full gross pay.

2.  On 30 September 2012, he was retired due to sufficient service for retirement and placed on the Retired List on 1 October 2012 in the rank/grade of sergeant first class (SFC)/E-7.  He was credited with completing over 23 years of active service.

3.  On 16 October 2012, he completed a DD Form 2656-6, requesting to discontinue his participation in SBP.

4.  On 30 October 2012, the VA awarded him a combined rating of 100-percent service-connected disability for numerous medical conditions.  The effective date of this benefit was 1 October 2012.

5.  On 11 December 2012, the Defense Finance and Accounting Service (DFAS), Retired and Annuitant Pay, denied his request, stating that the applicant had been retired for only three months and could only withdraw within the one year window between the 25th month and the 36th month after his retirement date. 

6.  The applicant provides a letter of consent from his spouse requesting termination of her SBP coverage based on the applicant's 100-percent disability rating granted by the VA which entitled her to receive DIC upon the death of her husband.

7.  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.

8.  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.

9.  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 requests termination of SBP coverage.

2.  The evidence of record shows that the applicant elected to participate in SBP prior to his retirement on 1 October 2012.  Later, on 16 October 2012, he applied to the DFAS to terminate his SBP coverage.  On December 2012, DFAS denied his request to discontinue his coverage stating his request was premature.  Although there is a provision for termination of SBP participation for VA-rated 100 percent disabled retirees, it is not applicable until the fifth year of being rated as such, so the applicant was not eligible for termination under that provision.

3.  He contends that he was not properly counseled and the SBP costs are a financial burden.  It is reasonable to presume that his attempt to terminate his SBP within two weeks of retiring is an indication that he may not have completely understood the actual cost involved or how his 100-percent disability rating would affect his need for SBP coverage.  For these reasons and the fact that his spouse concurred with a declination of the SBP, as a matter of equity, the applicant's record should be corrected to show he elected not to participate in the SBP, his spouse concurred with this election, and officials at DFAS timely processed the declination of SBP coverage. 

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 to 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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ABCMR Record of Proceedings (cont)                                         AR20140019724



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