IN THE CASE OF:	  

		BOARD DATE:	  15 October 2015

		DOCKET NUMBER:  AR20140021486 


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 his participation in the Survivor Benefit Plan (SBP) and reimbursement of all monies paid.

2.  The applicant states his enrollment in SBP was initiated in error.  SBP premiums were automatically withdrawn from his retired pay and he has exhausted all means to stop SBP through the Defense Finance and Accounting Service (DFAS).  This is his third attempt to correct this error.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 2656 (Data for Payment of Retired Personnel), dated 15 July 2013
* DD Form 2656, dated 14 July 2014
* DD Form 2656-2 (SBP Termination Request), dated 14 July 2014
* DD Form 2656-8 (SBP Automatic Coverage Fact Sheet), undated
* notarized statement from his spouse declining SBP, undated
* U.S. Army Physical Disability Agency Orders D143-01, dated 23 May 2013
* Army Review Boards Agency correspondence, dated 28 January 2014 and 13 November 2014
* self-authored correspondence to DFAS, dated 26 February 2014 and 23 July 2014
* DFAS correspondence, dated 1 July 2014 and 16 August 2014

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the Regular Army and the Army National Guard, the applicant enlisted in the U.S. Army Reserve on 14 September 2000.

2.  On 9 January 2006, he was ordered to active duty in support of Operation Enduring Freedom.  On 14 December 2006, he was honorably released from active duty for completion of required active service.  His deployment history, if any, for this period is not available for review.

3.  On 9 May 2008, he was ordered to active duty in support of Operation Enduring Freedom.  On 3 November 2008, he was honorably released from active duty for completion of required active service.  His deployment history, if any, for this period is not available for review.

4.  On 16 March 2009, he was ordered to active duty in support of Operation Enduring Freedom.  He deployed to Afghanistan from 10 June 2009 through 12 September 2009.  On 23 May 2010, he was honorably released from active duty for completion of required active service.

5.  He and his spouse were married on 3 December 2010.

6.  He was promoted to master sergeant/E-8 effective 1 December 2011.

7.  On 8 January 2013, a medical evaluation board (MEB) determined his medical conditions of anxiety disorder (not otherwise specified) with depressive component, right leg deep venous thrombosis, and left knee meniscal tear were incurred while entitled to base pay, did not exist prior to service, were permanently aggravated by service, and did not meet retention standards.  The MEB referred him to a physical evaluation board (PEB).

8.  On 6 May 2013, an informal PEB determined he was physically unfit and recommended his permanent disability retirement with a 40-percent disability rating for the medical conditions of anxiety disorder (not otherwise specified) with depressive component, right leg deep venous thrombosis, and left knee meniscal tear.  The PEB determined his anxiety disorder was a result of his duty in Afghanistan; his remaining conditions were not combat injuries, but were incurred in a combat zone.

9.  U.S. Army Physical Disability Agency Orders D143-01, dated 23 May 2013, released him from assignment and duty because of physical disability incurred while entitled to basic pay effective 26 June 2013 and placed him on the Retired List in the rank/grade of master sergeant/E-8 effective 27 June 2013.

10.  On 15 July 2013, he completed a DD Form 2656 wherein he indicated he was married and elected not to participate in SBP.  His spouse concurred with his election.

11.  On 1 July 2014, DFAS responded to his correspondence, dated 26 February 2014, regarding his enrollment in SBP.  DFAS informed him that he was automatically enrolled in SBP because DFAS received an invalid election at the time of his retirement.  He was advised to submit a DD Form 2656-2 to prove he had no eligible dependents or show proof of his original DD Form 2656 that he completed at the time of his retirement.

12.  In a letter to DFAS, dated 23 July 2014, he stated he did not elect to enroll in SBP.  He stated he had been charged monthly SBP premiums in the approximate amount of $112.00 from his retired pay.  He requested termination of SBP and reimbursement of all monies collected.  He enclosed copies of the following documents:

* DD Form 2656, dated 14 July 2014, indicating he did not want to enroll in SBP with his spouse's concurrence, dated 16 July 2014
* DD Form 2656-2, dated 14 July 2014, requesting discontinuance of participation in SBP with his spouse's concurrence, dated 16 July 2014

13.  On 16 August 2014, DFAS Retired and Annuity Pay Branch notified him that his SBP request could not be processed because his original election received on 19 July 2013 was invalid.  His spouse signed prior to him and, therefore, his current SBP category must remain as automatic coverage.

14.  Public Law 92-425, enacted 21 September 1972, established SBP.  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. 
An election to decline to participate in SBP must be made prior to the effective date of retirement or coverage automatically defaults to full spouse coverage (or child only coverage, if applicable).  An election, once made, is irrevocable except in specific circumstances.

15.  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 deployed to Afghanistan from 10 June 2009 through 12 September 2009.  He was released from active duty on 23 May 2010.  He was serving as a member of the USAR not on active duty at the time he subsequently underwent a PEB.  On 6 May 2013, the PEB determined he was physically unfit and recommended his permanent disability retirement with a 
40-percent disability rating for conditions incurred or aggravated in the line of duty.  The U.S. Army Physical Disability Agency released him from assignment and duty because of physical disability incurred while entitled to basic pay effective 26 June 2013 and placed him on the Retired List in the rank/grade of master sergeant/E-8 effective 27 June 2013.  He did not make an SBP election before his effective date of retirement.

2.  By law and regulation, married Soldiers who are eligible to retire from active duty must take action to decline SBP coverage prior to retirement; otherwise, coverage defaults to spouse coverage.

3.  He completed a DD Form 2656 declining SBP coverage on 15 July 2013, 19 days after his effective date of retirement, and his spouse concurred with his election.

4.  Since he was not serving on active duty at the time his disability retirement orders were published on 23 May 2013 and it is not known when those orders were received, it is reasonable to presume that he did not participate in standard retirement briefings between that date and the effective date of his retirement on 27 June 2013, 1 month and 5 days later.

5.  The evidence shows he declined SBP coverage with his spouse's concurrence less than 1 month after the effective date of his retirement.  In the interests of equity and justice, any doubt should be resolved in the applicant's favor.

6.  It would be appropriate to correct the applicant's records to show he submitted a DD Form 2656 declining SBP coverage on 26 June 2013, 1 day before the effective date of his retirement, and his spouse concurred with his election the same date.  It would also be appropriate to refund any SBP premiums paid to date.


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 he submitted a DD Form 2656 declining SBP coverage on 26 June 2013 and his spouse concurred with his election the same date;

	b.  showing DFAS received and accepted his declination in a timely manner; and

	c.  refunding any SBP premiums paid to date.



      ____________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)                                         AR20140021486



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ABCMR Record of Proceedings (cont)                                         AR20140021486



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