IN THE CASE OF:	  

		BOARD DATE:	  21 July 2015

		DOCKET NUMBER:  AR20150009327 


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, in effect, termination of his Survivor Benefit Plan (SBP) coverage.

2.  The applicant states:

* in December 2014, a Retirement Services Officer (RSO) in the Fort Hood Retirement Services Office instructed him to make an election on the SBP forms
* he was told he had to elect someone, so he elected his former spouse
* in March 2014, he learned the SBP requires monthly payments which he was previously unaware of
* he believed it to be free for medical retirees, similar to Department of Veterans Affairs Dependency and Indemnity Compensation
* he attempted to cancel his election, but was informed by officials at the Defense Finance and Accounting Service (DFAS) that a new election form could only be accepted if he properly applied for relief from the Board
* the RSO told him the program was mandatory, but now he finds out it was voluntary and he is unable to cancel it
* he is unable to pay the SBP premiums as he is having extreme difficulty affording the TRICARE, dental, and Medicare premiums

3.  The applicant provides:

* DD Form 2656 (Data for Payment of Retired Personnel), signed and dated 7 May 2015
* email correspondence with the Chief, Promulgation Team, Army Review Boards Agency
* final decree of divorce, dated 13 May 2011

CONSIDERATION OF EVIDENCE:

1.  After a period of prior enlisted service in the Regular Army, the applicant was commissioned as a second lieutenant in the U.S. Army Reserve with concurrent call to active duty effective 15 December 2001.

2.  In September 2014, he was retroactively placed on the Temporary Disability Retirement List (TDRL) with an effective date of 23 September 2008.  He was then removed from the TDRL and placed on the Permanent Disability Retirement List (PDRL) with an effective date of 2 April 2009 and a rating of 60 percent for 
post-traumatic stress disorder (PTSD).

3.  The 23 September 2008 effective date of his placement on the TDRL was subsequently determined to have been in error; thus on 11 May 2015, his records were corrected to show he retired on 31 December 2008 and was placed on the TDRL effective 1 January 2009.  His 2 April 2009 date of placement on the PDRL remained unchanged.

4.  Records provided by DFAS show the applicant completed a DD Form 2656, dated 24 November 2014.  Item 28f shows he elected coverage for his former spouse and dependent children of that marriage and item 27a shows he elected coverage based on full gross pay.

5.  Item 1 of his DD Form 2656-1 (Survivor Benefit Plan Election Statement for Former Spouse Coverage) in his records shows he changed his SBP coverage to former spouse and children due to divorce; item 4 shows this election was being made pursuant to a written agreement previously entered into voluntarily as part of or incident to a proceeding of divorce, dissolution, or annulment; and item 5 shows such a voluntary written agreement was incorporated in, ratified, or approved by a court order.  Both the applicant and his former spouse signed the DD Form 2656-1.

6.  The final decree of divorce, dated 13 May 2011, does not include a separate written agreement incorporated therein.  The divorce decree as a stand-alone document speaks to the division of property and assets and the right of each party to accrue pension, including disability benefits derived from their own past, present, or future employment.  It makes no reference to required SBP former spouse coverage or anything that might be construed as similar in nature, mandating the applicant's compliance.

7.  A DFAS letter, dated 1 May 2015, shows the applicant owes $16,095.32 in back SBP premiums.

8.  There is no independent evidence of record and the applicant has not provided any showing he was improperly counseled regarding his SBP election options by officials in the Fort Hood Retirement Services Office.

9.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  The election must be made prior to the effective date of retirement or else coverage automatically defaults to spouse coverage, if applicable.

10.  Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse's written concurrence for a retiring member's election that provides less than the maximum spouse coverage.

11.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.  It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center.  The USFSPA contains strict jurisdictional requirements.  The State court must have personal jurisdiction over the FSM by virtue of the FSM's residence in the State (other than pursuant to military orders), domicile in the State, or consent.

12.  Public Law 99-145, dated 8 November 1985, permitted retirees to elect SBP coverage for a former spouse under spouse coverage provisions vice insurable interest provisions.

13.  Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the USFSPA relating to the SBP.  It permits a person to elect to provide an annuity to a former spouse.  Any such election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date of the decree of divorce.  The member must disclose whether the election is being made pursuant to the requirements of a court order or pursuant to a written agreement previously entered into voluntarily by the member as part of a proceeding of divorce.

14.  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 the 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 evidence of record shows the applicant submitted a DD Form 2656 and a DD Form 2656-1 wherein he elected to participate in the SBP for former spouse and children coverage pursuant to a written agreement previously entered into voluntarily as part of divorce proceedings and incorporated in a court order.  The RSO would have no knowledge of his divorce proceedings without the applicant divulging this information.  It is unclear whether the terms of his divorce were discussed.

2.  The divorce proceedings do not compel the applicant to provide SBP coverage for his former spouse.  Although the applicant indicated on the forms that he entered into a written agreement incorporated into a court order to provide his former spouse with SBP coverage, the evidence of record does not show he was ordered to so.  In fact, the terms of the divorce decree specifically disavow any obligation on the part of either the applicant or his former spouse to provide or maintain any sort of interest or entitlement to a portion of any pension or disability related to the other's employment.  Accordingly, it appears the applicant was confused, perhaps misinformed, and that he made the former spouse coverage election in error.

3.  The applicant claims he was improperly counseled concerning his requirement to elect SBP coverage.  Given his mental state at the time of election and his own admission, it is reasonable to presume that, at a minimum, he misunderstood his legal requirements to provide coverage and the actual cost involved in the type of coverage he elected based on the guidance of the RSO.

4.  As the applicant could have declined any and all forms of SBP coverage at the time and was not directed by a court order to provide coverage, there is sufficient evidence to show an error or an injustice occurred at the time of his election.  Therefore, it would be appropriate to correct his records to show he did not elect to participate in the SBP, remitting any debt he incurred as a result of premiums and interest owed, and refunding him any monies (premiums) previously paid for SBP coverage.



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 amending his DD Form 2656 to reflect he elected not to participate in the SBP, remitting his SBP debt with interest, and refunding him any monies due as a result of this correction.



      _______ _   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)                                         AR20150009327



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ABCMR Record of Proceedings (cont)                                         AR20150009327



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