IN THE CASE OF: BOARD DATE: 28 January 2016 DOCKET NUMBER: AR20140016743 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 Survivor Benefit Plan (SBP) coverage for his spouse. 2. The applicant states: a. He made a terrible mistake in that he did not understand that his wife is eligible to receive Department of Veterans Affairs (VA) Dependent Indemnity Compensation (DIC) benefits in the event that something happens to him. b. He only learned about DIC benefits after he received his ABCMR results. c. He was also unaware of the cost involved in obtaining SBP coverage until Defense Finance and Accounting Service (DFAS) officials informed him of his responsibility to pay $300.00 monthly premiums retroactive back to the date of his marriage and forward. d. Had he fully understood all of the details from the beginning he would not have signed up for SBP participation. 3. The applicant provides: * Self-Authored Statement * Spouse’s Statement * Original ABCMR Proceedings CONSIDERATION OF EVIDENCE: 1. On 13 September 1989, the applicant enlisted in the United States Army Reserve as a cadet and entered the Reserve Officer Training Cadet program. He was commissioned second lieutenant on 30 August 1991 and he entered active duty on 26 May 1992. 2. On 13 May 2010, the applicant completed a DD Form 2656 (Data for Payment of Retired Personnel) during his retirement processing. It shows he was single and elected not to participate in the SBP because he had no eligible dependents under the plan. 3. On 22 July 2010, he retired from active duty by reason of “Temporary Disability” in the rank of lieutenant colonel having completed 18 years, 1 month, and 29 days of creditable active duty service. He was placed on the Temporary Disability Retired List (TDRL) on 23 July 2010. 4. On 3 September 2011, he married his current wife. 5. On 21 August 2013, DFAS denied the applicant’s request to participate in the SBP because notification of his marriage was not received before his first anniversary. 6. On 3 September 2013, an informal Physical Evaluation Board (PEB) found the applicant unfit for duty for Hashimoto encephalopathy (this condition was rated analogous to encephalitis). a. The applicant was not competent to participate in the PEB proceedings. He had a medical power of attorney (POA) naming his wife and primary caregiver as his primary representative. The PEB requested the applicant's POA review and sign the PEB on behalf of the applicant. He was treated with prednisone and plasmapheresis (the removal, treatment, and return of (components of) blood plasma from blood circulation). The condition was considered chronic and remained unfitting, was considered stable for rating, and was rated for an active febrile disease. b. The PEB recommended a combined disability rating of 100 percent and that he be retired due to permanent disability. c. The applicant and his wife, as his POA, concurred with the findings of the PEB and waived a formal hearing of his case. 7. On 11 September 2013, he was removed from the TDRL and permanently retired with a 100 percent disability rating. 8. On 2 September 2014, the ABCMR granted the applicant’s request to participate in the SBP, spouse only coverage, as a result of his Hashimoto encephalopathy diagnosis, a medical condition that affected his mental capacity during the first year of his marriage and thereby hindered his ability to request SBP coverage as required by law. He was also required to pay all SBP premiums due and payable as a result of his record correction. 9. The applicant provides a letter from his spouse wherein she states her understanding that she is opting out of the SBP. 10. 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. 11. Section 1448, Title 10, U. S. Code provides that if a person makes an election not to participate in the SBP, the person’s spouse shall be notified of that election. Spousal concurrence is needed only when a married person elects to provide an annuity for his spouse at less than the maximum level or to provide an annuity for a dependent child but not for his/her spouse. An election received for less than the maximum level without spousal concurrence will automatically default in activation of SBP coverage at the maximum level. DISCUSSION AND CONCLUSIONS: 1. The applicant contends his participation in the SBP should be terminated and all resulting premiums deducted from his retired pay for this coverage should be reimbursed because he was unaware of his wife’s entitlement to VA DIC benefits and unaware of his requirement to pay the costly $300.00 monthly SBP premiums retroactively back to the date of his marriage. There is sufficient evidence to support his claim. 2. The evidence of record confirms the applicant suffered from a medical condition that initially caused his placement on the TDRL. His condition worsened and ultimately rendered him incompetent to participate in the PEB processing that rated his condition 100% disabling, causing his permanent retirement from the Army. Based on the applicant’s questionable mental state during the one year after his marriage to his spouse, the ABCMR approved his request to participate in the SBP. However, the applicant now seeks termination of this coverage. 3. The evidence of record fails to show that the applicant or his spouse received any counseling concerning the SBP or the cost involved to secure his participation during his ABCMR consideration process. It is also unknown if the applicant would have understood his financial obligation required to obtain SBP coverage for his spouse, especially as it pertains to the retroactive and continued premium cost. 4. Based on the applicant’s compromised mental state that only worsened during his final PEB processing and the hefty debt incurred as a result of obtaining SBP coverage, in the interest of equity and justice, the applicant's record should be corrected to show he elected not to participate in the SBP on 4 September 2011, the date following his marriage to his wife, which would also result in reimbursement of premiums paid for this benefit. 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: a. the applicant elected not to provide spousal SBP coverage for his post-retirement spouse and he informed DFAS of this fact on 4 September 2011, thereby canceling the debt that resulted as a result of unpaid premiums; and b. reimbursing him all paid SBP premiums, if 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) AR20140016743 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140016743 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1