IN THE CASE OF: BOARD DATE: 1 August 2013 DOCKET NUMBER: AR20130004344 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, the spouse of a retired service member (SM), requests correction of the SM's DD Form 2656 (Data for Payment of Retired Personnel) to show he elected Survivor Benefit Plan (SBP) coverage for children only instead of coverage for spouse and children. 2. The applicant states the correction she requests will allow them to pay $3.84 each month for children-only SBP coverage instead of $311 for spouse and children. She believes she should have been present at the SBP briefing to help decide the financial outcomes for their family, just as she had taken care of the household finances when the SM was overseas during four deployments. During the emotional period leading up to his discharge, the SM's "concentration was not on point," as evidenced by a statement made by his commander. She was not there to help make the SBP decision, and the SM was not aware of their household expenses. She estimates a change in the SBP election will save their household $3,693 annually. 3. The applicant provides: * Durable Power of Attorney * Form 2848 (Power of Attorney and Declaration of Representative) * DA Form 199 (Physical Evaluation Board (PEB) Proceedings) * DA Form 7652 (Physical Disability Evaluation System (PDES) Commander's Performance and Functional Statement) * DD Form 2656 * DD Form 2656-2 (SBP Termination Request) * Marriage License and Certificate of Marriage CONSIDERATION OF EVIDENCE: 1. The applicant and the SM were married on 21 July 2000. 2. Having had prior enlisted service in the Army National Guard (ARNG) and U.S. Army Reserve, effective 22 August 2003, the SM was appointed as an infantry officer in the ARNG. 3. His record shows he served on active duty in support of Operation Iraqi Freedom from 6 January 2004 to 7 April 2005, with service in Iraq from 23 March 2004 to 21 March 2005. During the period 7 July 2006 to 30 June 2007, he served on active duty in support of Operation Jump Start (a military operation to assist U.S. Customs and Border Patrol). 4. On 1 October 2007, he entered active duty for pre-mobilization training. He was released from active duty on 2 January 2008, and he reentered active duty the next day. His record shows he served in Iraq from 19 March to 18 December 2008. 5. On 27 March 2009, the U.S. Army Human Resources Command, St. Louis, MO, issued Orders A-03-909436. The orders, as amended, retained him on active duty to participate in the Reserve Component Warriors in Transition Medical Retention Processing Program for completion of medical care and treatment. 6. The applicant provides a DA Form 7652, dated 21 October 2010, in which the SM's commander recommended the SM not be retained in the military. The SM's commander stated, in part, the SM was able to make simple decisions, but usually not complex or unfamiliar decisions. 7. On 13 July 2011, a PEB found him physically unfit for post-traumatic stress disorder (PTSD) (70 percent disabling) and thoracolumbar spondylosis with thoracic levoscoliosis (20 percent disabling). With regard to the diagnosis of PTSD, the PEB found he was experiencing significant mental health issues. His commander reported that his chronic PTSD significantly impacted his military performance in that he had periods of not completing tasks to time and standards. The PEB noted his symptoms included anxiety, chronic sleep impairment, memory issues, avoidance behavior, and difficulty with concentration. 8. The PEB recommended a combined disability rating of 80 percent and that he be placed on the Temporary Disability Retired List. On 26 September 2011, the PEB findings and recommendations were approved for the Secretary of the Army. 9. A memorandum, dated 7 August 2011, subject: Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), notified him he had completed the required years of service to be eligible for retired pay upon application at age 60. The memorandum also informed him of his entitlement to participate in the Reserve Component SBP (RCSBP) and that RCSBP coverage would default to full coverage for spouse and children unless he elected different coverage within 90 days of receipt of the memorandum. 10. On 7 August 2011, he signed a DD Form 2565-5 (RCSBP Election Certificate). The certificate shows he was married and had five children. He elected Option C (immediate annuity) for his spouse and children based on the full amount of his retired pay. His spouse did not sign the form. 11. The applicant provides a DD Form 2656 signed by the SM on 3 November 2011. The form shows in: * Section VIII (Dependency Information), item 22 (Spouse), he entered the applicant's name * Section VIII, item 25 (Dependent Children), he listed five dependent children * Section IX (SBP Election), he selected item 26b (I elect coverage for spouse and children.) * Section IX, he selected item 27a (I elected coverage based on full gross pay.) * Section XII (SBP Spouse Concurrence), the applicant did not provide her signature 12. On 25 December 2011, he was retired and placed on the Temporary Disability Retired List. 13. The available records are void of documentation showing a medical officer found the SM to be mentally incompetent. 14. The applicant also provides a notarized DD Form 2656-2 requesting to discontinue participation in the SBP. The form was signed by the SM and the applicant on 4 January 2012. 15. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. If a person who is eligible to participate in the SBP is determined to be mentally incompetent by medical officers of the armed force concerned or of the Department of Veterans Affairs, or by a court of competent jurisdiction, an election may be made on behalf of that person by the Secretary concerned. An election to decline to participate in the 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). 16. 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 provided less than maximum spouse coverage. 17. Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation. Retirees have a one-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. 18. Army Regulation 600-8-7 (Retirement Services Program) prescribes the policies for the retirement services and SBP functions of military personnel management. a. Chapter 3 (Pre-Retirement Services Policy) states that, whenever possible, SBP or RCSBP counseling of spouses will be conducted in person. If the spouse is unavailable for counseling based on incapacitation or geographic location, prescribed Headquarters, Department of the Army (HQDA), SBP or RCSBP information will be mailed to the spouse using certified mail, restricted delivery, along with notification of the Soldier’s SBP or RCSBP election, a cost-benefit estimate, and a request for spouse concurrence using the Department of the Army prescribed letter and concurrence statement, if applicable. b. A spouse's concurrence is only required if a Soldier elects less than maximum coverage. c. If a Soldier has been declared mentally incompetent, the Chief, Army Retirement Services, as delegated by the Secretary of the Army, will make the SBP or RCSBP election on behalf of the Soldier following in-depth counseling of the Soldier’s primary next of kin by the retirement services officer. DISCUSSION AND CONCLUSIONS: 1. The available evidence does not support the applicant's request for correction of the SM's DD Form 2656 to show he elected SBP coverage for children only instead of coverage for spouse and children. 2. The applicant states she believes she should have been present at the SM's SBP briefing to assist him in making an SBP election. There is no evidence indicating she was unfairly deprived of the opportunity to attend such a briefing or that she did not receive HQDA-prescribed information in lieu of an in-person briefing. 3. Regardless of whether or not she was properly informed of the implications of the various SBP election options, the SBP election could only be made by the SM. If it had been determined that the SM was mentally incompetent, she would have been consulted regarding his election. There is no evidence indicating he was determined to be mentally incompetent. Further, because he elected maximum coverage for spouse and children, her concurrence was not required. 4. The SM, with concurrence from the applicant, may withdraw from the SBP during the 12-month period beginning on the second anniversary of the date on which his retired pay started. His window for withdrawing from the SBP will be 26 December 2013 to 25 December 2014. 5. In view of the foregoing, there is an insufficient basis upon which to grant the requested relief. 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) AR20130004344 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130004344 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1