IN THE CASE OF: BOARD DATE: 2 February 2016 DOCKET NUMBER: AR20150002613 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 correction of his records to show he elected not to participate in the Survivor Benefit Plan (SBP) and that he be refunded all monies paid to the SBP. 2. The applicant states he was not informed of what he was signing. 3. The applicant provides a Physical Disability Information Report, retirement orders, and a DD Form 2656-2 (SBP Termination Request), dated 25 January 2016. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: Counsel did not provide a reason, an argument, or documentary evidence in support of this request. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve on 5 March 2002. He entered active duty on 17 January 2003. He served in Iraq from 31 October 2005 to 29 October 2006. 2. A Physical Evaluation Board (PEB) found the applicant medically unfit to perform his military duties and recommended his separation with entitlement to severance pay. He was discharged on 18 June 2008. 3. It appears his PEB proceedings were reviewed by the DOD Physical Disability Board of Review sometime in 2011/2012. 4. Joint Base Lewis-McChord Orders Number 034-0009, dated 3 February 2012, directed his placement on the Temporary Disability Retired List (TDRL) effective 19 June 2008. 5. U.S. Army Physical Disability Agency Order Number D130-65, dated 9 May 2012, directed his removal from the TDRL and placement on the Permanent Disability Retired List effective 19 December 2008. 6. The applicant completed a DD Form 2656 (Data for Payment of Retired Personnel) on 18 June 2012, in which he elected spouse-only SBP coverage. 7. There is no evidence in the applicant's available records indicating that his spouse would have concurred with a decision to decline participation in the SBP at the time of his retirement. 8. He provides a DD Form 2656-2 that shows his spouse concurred with his decision to terminate SBP participation. This form was signed and notarized on 25 January 2016. 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 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 shows the applicant was initially separated on 18 June 2008, due to physical disability with entitlement to severance pay. Orders dated 3 February 2012 directed his placement on the TDRL retroactive to 19 June 2008. He signed his DD Form 2656 on 18 June 2012 electing spouse-only SBP coverage. 2. The law allows for SBP termination with spousal concurrence only during the period that is more than 2 years but less than 3 years after the first date of entitlement to receive retired pay. 3. Due to the circumstances of his retirement for temporary disability, in February 2012 he was retroactively retired effective 19 June 2008 and elected SBP spouse-only coverage. This lapse of almost 4 years resulted in incurring an SBP debt for an entitlement he and his family could not have benefited from at the time, without the ability to request termination of the benefit within the time frame required by law. 4. Although there is no evidence of error or injustice, as a matter of equity, his records should be corrected to show he completed a DD Form 2656 at the time he was processed for disability retirement electing not to participate in the SBP and that his spouse concurred with his decision. 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 amending his DD Form 2656 to reflect he elected not to participate in the SBP and that his spouse concurred with his decision prior to his date of separation from active duty and refunding any monies due him 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) AR20150002613 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150002613 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1