IN THE CASE OF:	  

		BOARD DATE:	  14 April 2015

		DOCKET NUMBER:  AR20150002751 


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 withdrawal from the Survivor Benefit Plan (SBP).

2.  The applicant states he was medically retired from the Army on 26 December 2013.  He did not understand the concepts of the SBP.  Due to the amount of medication that he had been taking at that time due to the severe post-traumatic stress disorder (PTSD) symptoms he did not recall what he signed for.

3.  The applicant provides:

* marriage certificate
* a notarized statement signed by him and his wife on 21 October 2014
* one page of a Department of Veterans Affairs (VA) rating decision
* one page of a VA award letter

CONSIDERATION OF EVIDENCE:

1.  On 5 June 2010, he enlisted in the Regular Army.  He completed basic combat and advanced individual training and was awarded military occupational specialty 09L (Translator Aide).

2.  He served in Iraq from 7 May 2011 - 11 October 2011.  

3.  On 20 September 2013, a physical evaluation board (PEB) was convened and found the applicant physically unfit and recommended a disability of 
80 percent (%).  The PEB recommend he be placed on the Temporary Disability Retired List (TDRL) with a reexamination during June 2014.  The PEB determined the following conditions to be unfitting:

* PTSD (moderate) resulted in depressive disorder not otherwise 
specified - 50%
* severe obstructive sleep apnea with moderate persistent asthma - 50%

4.  There is no evidence the PEB found him incompetent to manage his financial affairs.

5.  The Defense Finance and Accounting Service (DFAS) provided a DD Form 2656 (Data for Payment of Retired Personnel) signed by the applicant on 
11 October 2013.  Under SBP elections he elected spouse and children coverage based on the full amount of his retired pay.  Spouse concurrence was not required because he did not elect less than the maximum coverage.

6.  On 26 December 2013, he was retired and placed on the TDRL the following day with a disability rating of 80%.

7.  He provided a notarized statement, dated 21 October 2014, signed by him and his wife in order to decline SBP.  He stated SBP was not explained and he did not understand SBP at the time of his retirement due to the amount of medication he had been taking at that time due to his severe symptoms of PTSD.  
8.  He provided one page of a VA rating decision.  Based on a VA examination, dated 22 August 2014, the evaluation of his PTSD with depressive disorder not otherwise specified was increased to 100%.  According to the decision, the medical evidence showed he was competent to manage his financial affairs.

9.  Department of Defense Instruction 1332.42 provides responsibilities and procedures for administering the Survivor Annuity Program, which is comprised of the SBP.

	a.  A member on the TDRL is eligible to elect coverage until the member is no longer eligible for disability retired pay.

	b.  A member entitled to retired pay based on active service who has a spouse or dependent child is considered a participant having maximum SBP coverage, unless the member, with spousal concurrence if married, elects less-than-maximum spouse coverage, child-only coverage, or not to participate in SBP.

	c.  Written spousal concurrence is required when the member elects to decline coverage or provide the spouse with less than the maximum SBP coverage available, to include electing child-only coverage.

	d.  All SBP elections must be in writing, signed, and properly witnessed if required.  All elections are irrevocable if not revoked before the date on which the person first becomes entitled to retired pay unless otherwise provided by law.

	e.  A member may elect to discontinue participation by submitting a 
DD Form 2656-2 (SBP Termination Request) during the period that is more than 2 years, but less than 3 years, after the first date of entitlement to receive retired pay.  The member must submit the request no earlier than the 1st day of the 
25th month and no later than the last day of the 36th month from the date of entitlement to retired pay, with spousal concurrence if applicable.

	f.  The Secretary concerned may make an SBP election on behalf of a member who is declared incompetent by medical officers of the Armed Force concerned, or of the VA, or by a court of competent jurisdiction.  In the event the member is later declared competent by one of these authorities, the member may elect to revoke that election within the 180-day period following a determination of competency.  There shall be no refund of premiums paid for coverage during a period of declared incompetence.

10.  Title 10, U.S. Code, section 1448(b)(1)(E) states once participation is discontinued premiums paid may not be refunded.

DISCUSSION AND CONCLUSIONS:

1.  He contends he did not understand the concepts of SBP due to the amount of medication that he was taking and his symptoms of severe PTSD.  The PEB did not indicate whether he was incompetent to manage his financial affairs at the time of his retirement.  Therefore, it is concluded that at the time of his retirement he was competent to manage his financial affairs. 

2.  The portion of a VA rating decision he provided that increased his PTSD rating to 100% specifically stated the medical evidence showed he was competent to manage his financial affairs.  Although the date of this decision is unknown, it was based on a VA examination dated 22 August 2014.

3.  The DD Form 2656 provided by DFAS clearly shows the applicant elected SBP spouse and children coverage based on the full amount of his retirement pay.  Spouse concurrence was not required because he elected the maximum benefit.  This election became irrevocable on 27 December 2013, the day he became entitled to retirement pay.  He provides no evidence to show he was improperly counseled or that he was not competent to make this financial decision.

4.  His request to discontinue SBP that was signed by his wife concurring with his request was not signed until 21 October 2014.  This was after the date he became entitled to retirement pay.  Therefore, his request was not valid.

5.  He may elect to discontinue participation by submitting a DD Form 2656-2 during the period that is more than 2 years, but less than 3 years, after the first date of entitlement to receive retired pay.  He must submit the request no earlier than the 1st day of the 25th month and no later than the last day of the 36th month from the date of entitlement to retired pay, with spousal concurrence if applicable.  Premiums previously paid are not refunded.

6.  He is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately so as to be prepared to submit his request to DFAS when eligible.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.

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)                                         AR20150002751



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ABCMR Record of Proceedings (cont)                                         AR20150002751



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