IN THE CASE OF: BOARD DATE: 5 January 2016 DOCKET NUMBER: AR20150005445 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. He states he retired from the Minnesota (MN) Army National Guard (ARNG) on 25 November 2013. He never completed a DD Form 2656-5 (Reserve Component (RC) SBP Election Certificate) and he did not believe he needed to complete this form since he had elected to receive Department of Veterans Affairs (VA) benefits in lieu of his Army retirement benefits. 3. He provides: * DD Form 2656-5 * State of Minnesota, Petition for Adoption, dated 13 June 2014 * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) * Honorable Discharge Certificate * Defense Finance and Accounting Services (DFAS) letters, dated 5 June 2014 and 14 October 2014 with computation sheets * ARNG current annual retirement statement, dated 5 December 2013 * applicant's social security card and certificate of birth * VA documents * Orders 316-1009, dated 12 November 2013 * SBP/Retired Serviceman's Family Protection Plans (RSFPP) Premium Bill, dated October and May 2014 * DD Form 2656-2 (SBP Termination Request) with spouse concurrence letter, dated 20 March 2015 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the ARNG on 26 February 2003. He was ordered to active duty on 21 September 2005, in support of Operation Iraqi Freedom. He served in Iraq from 31 March to 13 July 2006 and was honorably released from active duty and transferred to his ARNG unit on 21 August 2007. 2. A VA document, dated 22 March 2010, show he received a 100 percent (%) combined service-connected disability rating. 3. On 25 November 2013, he was permanently retired due to disability in the rank/grade of specialist (SPC)/E-4. 4. His record is void of an SBP election prior to his discharge date. 5. An SBP/RSFPP Premium Bill, dated 28 May 2014, shows the monthly cost for SBP was $115.05 with a past due amount of $115.05. 6. On 5 June 2014, DFAS responded to the applicant's request to terminate his SBP. The representative quoted the instructions on the DD Form 2656 as "You only have a one-year window to withdraw from the SBP, starting with the 25th month through the 36th month after your first eligibility." The representative further stated that since the applicant had been retired for 4 months, he was not eligible to withdraw. 7. On 14 October 2014, at the applicant's request, DFAS conducted an audit of his SBP and/or RSFPP account. The representative said that as of the date of their letter, he was in debt to the Government in the amount of $1,276.84. The audit sheet shows the balance was based on premiums in the amount of $115.05 from December 2013 through October 2014, a total of 11 payments. 8. The applicant submitted a DD Form 2656-5, dated 25 November 2014, that shows his status as married with one child. This form indicates he elected Option A, "I decline to make an election until age 60." His spouse signed the form indicating that she concurred with the applicant's election. This form is notarized by a Notary Public. 9. The applicant submitted DD Form 2656-2, dated 20 March 2015, that shows he requested to terminate his SBP. He also submitted a notarized statement from his spouse indicating that she received all the information explaining the options available to her and understood the effects of those options. She concurred with the applicant’s request to cancel the SBP. 10. Information obtained from DFAS verifies that the DD Form 2656-2, dated 20 March 2015, is the only SBP document in the system. 11. Public Law 92-425, the SBP, enacted on 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. An election to decline to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse (or child only coverage, if applicable) coverage. 12. 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 from the program. 13. Title 10, U.S. Code, section 1452(g), allows a retiree with a spouse who will be entitled to Dependency and Indemnity Compensation to terminate SBP. The retiree must be rated 100% disabled by the VA for 5 continuous years from the date of last discharge from active duty, or 10 continuous years if the effective date of the 100% disability is after the retirement date. SBP premiums already paid will be refunded to the retiree's surviving spouse upon the retiree's death. 14. Participation in SBP of a person who submits a request shall be discontinued effective on the first day of the first month following the month in which the request is received by the Secretary concerned. Effective on such date, the Secretary concerned shall discontinue the reduction being made in such person's retired pay resulting from participation in the plan. DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows the applicant was granted a 100% service-connected disability rating from VA in March 2010, prior to his retirement date of 25 November 2013. 2. The evidence further shows he did not elect to decline to participate in the SBP prior to the effective date of his retirement and therefore, he was automatically enrolled in the SBP with full spouse coverage. 3. He maintains that since he received a 100% disability rating from the VA, he does not need the SBP coverage. In the preparation of his medical retirement it is reasonable to presume he was not adequately counseled and that he did not completely understand how his 100% disability rating would affect his need for the SBP coverage. For these reasons and the fact that his spouse concurred with a declination of the SBP, and as a matter of equity, the applicant's record should be corrected to show he elected not to participate in the SBP, his spouse timely concurred with this election, and officials at DFAS timely processed the declination of SBP coverage prior to his date of retirement. 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 with spouse and child coverage prior to his date of separation * showing his spouse concurred with this election * refunding him all premiums paid and/or cancelling all his SBP related debt to the Government __________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) AR20150005445 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005445 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1