IN THE CASE OF: BOARD DATE: 8 March 2016 DOCKET NUMBER: AR20150009415 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: * he was initially separated for disability with entitlement to severance pay on 21 September 2006 * in 2013, his records were corrected and he was retired instead, with an effective date of 21 September 2006 * he filled out the DD Form 2656 (Data for Payment of Retired Personnel) electing spouse/child coverage; his premiums were backdated to 2006; this created a debt that is putting him and his family at a financial burden * he filled out a DD Form 2656-2 (SBP Termination Request) but it was rejected by the Defense Finance and Accounting Service (DFAS) * he was told he was already beyond the legal timeframe (1-year period beginning on the second anniversary of the date on which retired pay started) to withdraw from SBP * he believes since his retirement orders were published in 2013, he is still within the 1-year period from the second anniversary of his retirement * he did not have a briefing on the pros and cons of the SBP; he took the paperwork to the service officer and he signed the SBP form without any explanation * he is also rated 100 percent service-connected by the Department of Veterans Affairs (VA) and he waives a portion of his retired pay to collect the VA pay 3. The applicant provides: * Orders 234-0012, dated 22 August 2006, disability discharge * Orders 018-0007, dated 18 January 2013 (temporary disability retired list (TDRL)) * Orders 018-0006, dated 18 January 2013, rescinding Orders 234-0012 * Orders D023-13, dated 23 January 2013, permanent retirement * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 215 (Correction to DD Form 214) * Certified postal receipt to DFAS * DFAS SBP Premium Bill 4. On 30 January 2016, the applicant submitted a notarized statement from his wife. CONSIDERATION OF EVIDENCE: 1. The applicant and his spouse, Vivian, were married on 9 April 2002. 2. He enlisted in the Army National Guard (ARNG) on 30 April 2002 and held military occupational specialty 11B (Infantryman). He was discharged from the ARNG on 29 October 2003. 3. He enlisted in the Regular Army on 30 October 2003. He was assigned to the 2nd Battalion, 23rd Infantry, Fort Lewis, WA. He served in Iraq from 4 September 2003 to 14 September 2004. He reenlisted on 23 May 2005. 4. On 22 August 2006, Headquarters, I Corps, Fort Lewis, WA published Orders 234-0012 ordering his discharge from active duty, in the rank/grade of sergeant (SGT)/E-5 effective 21 September 2006 by reason of disability with entitlement to severance pay. 5. He was honorably discharged on 21 September 2006. His DD Form 214 shows he was discharged by reason of disability with entitlement to severance pay in accordance with chapter 4 of Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Separation or Retirement), Separation Code JFL, and a Reentry Code of 3. 6. In August 2012, as a result of a review of his disability processing, the Department of Defense Physical Disability Board of Review (Docket Number AR20120013949) determined that he should have been retired by reason of disability instead of discharged with severance pay. As a result of this action: a. On 18 January 2013, Directorate of Human Resources, Military Personnel Division, Joint Base Lewis McChord published Orders 018-006 rescinding Orders 234-0012 that discharged him on 21 September 2006 by reason of disability with entitlement to severance pay. b. On 18 January 2013, Directorate of Human Resources, Military Personnel Division, Joint Base Lewis McChord published Orders 018-007 releasing him from active duty by reason of temporary disability on 21 September 2006 and placing him on the TDRL effective 22 September 2006. 7. On 23 January 2013, the applicant was issued a DD Form 215 that amended his DD Form 214 to show he was: * placed on the TDRL vice discharged with severance pay * assigned Separation Code SFK vice JFL and Reentry Code 4 vice 3 8. On 23 January 2013, the U.S. Army Physical Disability Agency made a final disposition of his case and published Orders D023-13 removing him from the TDRL effective 21 March 2007 (after 6 months on the TDRL) and permanently retiring him in the rank/grade of SGT/E-5. 9. On 1 March 2013, he completed a DD Form 2656. He stated that he was married to Vivian and they had three children, born in 1994, 1997, and 2001 respectively. He elected "spouse and children" SBP coverage based on the full amount. He and a witness authenticated this form with their signatures. 10. DFAS received his election and processed it. His premiums were effective the date his retirement began, 21 September 2006. His monthly premium was $87.18. 11. On 28 May 2015, DFAS sent him an SBP premium bill. This bill shows he still owed a balance of $704.50 from previous months and his monthly premium is $87.18. 12. The applicant submitted a signed and notarized statement from his wife agreeing to the declination of SBP election. 13. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP 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. An election, once made, was irrevocable except in certain circumstances. This law also provides that every member having a spouse and/or child(ren), who retired/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list. 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 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. By law and regulation, upon retirement, married Soldiers must make an election regarding the SBP. They can either make an election (spouse, children, etc) or decline coverage with their spouse's concurrence prior to retirement. If no action is taken by the Soldier, coverage defaults to "spouse" coverage. 2. Here, the applicant was discharged with entitlement to severance pay on 21 September 2006. Although he was married, he was not required to make an election at the time because he did not retire then. When his case was medically reviewed in 2013, officials determined he should have been placed on the TDRL due to his medical condition(s). 3. Accordingly, his September 2006 discharge was voided and he was placed on the TDRL effective 21 September 2006. When this action happened, he was still married and made an SBP election for "spouse and children" coverage based on the full amount. When he did so, just as his retired pay was backdated to September 2006, so were his SBP premiums. There is no error or injustice. 4. Nevertheless, it is clear that not only did the applicant not understand the SBP or its costs, he was not aware that his premiums would be backdated to 2006. This created a financial hardship to him and his family. It is reasonable to presume if he had fully understood this program, he would have likely elected not to participate in the SBP or possibly make a different election. 5. His spouse, who has a vested interest in this program, concurs with his decision to not participate in the SBP. It appears, from an equity standpoint, it would be appropriate to correct his record to show he elected not to participate in the SBP. 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: * showing the applicant accurately completed the appropriate form electing not to participate in the SBP, with his spouse's concurrence, when his records were amended to place him on the TDRL * showing DFAS timely received and processed the appropriate form * reimbursing the applicant premiums that were already paid and canceling any debt 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) AR20150009415 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150009415 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1