IN THE CASE OF: BOARD DATE: 4 October 2016 DOCKET NUMBER: AR20150013920 BOARD VOTE: ____X_____ ___X____ ___X_____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 4 October 2016 DOCKET NUMBER: AR20150013920 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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: a. showing the applicant and her spouse signed the DD Form 2656 and declined to participate in the SBP, b. showing the applicant's DD Form 2656 was timely received and processed by the appropriate office at Defense Finance and Accounting Service, and c. refunding to her any SBP premiums previously paid. ______________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. IN THE CASE OF: BOARD DATE: 4 October 2016 DOCKET NUMBER: AR20150013920 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 the termination of her Survivor Benefit Plan (SBP) coverage. 2. The applicant states that during the SBP enrollment period she was undergoing chemotherapy and radiation therapy to combat glioblastoma [brain cancer] and lupus cerebiritis, which caused severe memory problems. Her command and enrollment official knew this but they did nothing to ensure that her husband received the paperwork to disenroll them from the program. 3. The applicant provides: * Orders Number 266-0260, dated 23 September 2013 * Orders Number 266-0269, dated 23 September 2013 * Orders Number 267-0266, dated 24 September 2013 * DD Form 2656 (Data for Payment of Retired Personnel), dated 24 September 2013 * Spouse SBP Election Concurrence Statement, dated 17 July 2015 * Statement for Record, dated 22 July 2015 from an Assistant Retirement Services Officer * Letter, dated 13 August 2015, from spouse CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 31 October 2011. 2. On 28 June 2013, she was evaluated by a Medical Evaluation Board (MEB). After careful consideration of clinical records, laboratory findings, and physical examination, the MEB found that the applicant had bilateral hip stress fractures and systemic lupus erythematosus. She was referred to a Physical Evaluation Board (PEB). 3. On 5 September 2013, an informal PEB determined she was physically unfit for military service based on her conditions of systemic lupus erythematosus, epilepsy, and bilateral hip stress fractures. The PEB determined the applicant's medical condition of epilepsy, grand mal as unfitting because the seizures could have been due to lupus cerebritis, but etiology was not yet confirmed by neurology. The PEB recommended permanent disability retirement with a combined disability rating of 80 percent. 4. On 24 September 2013, she completed a DD Form 2656 and she elected not to participate in the SBP. Her spouse did not sign the form under Section XII (SBP Spouse Concurrence). This form indicates that a spouse's signature is required for concurrence when the service member is married and elects children only coverage, does not elect full coverage, or declines coverage. 5. On 23 November 2013, she was medically retired in the rank of specialist. 6. On 17 July 2015, her spouse submitted a notarized statement concurring with her decision to decline SBP coverage. 7. On 22 July 2015, an Assistant Retirement Services Officer, Headquarters, U.S. Army Garrison, Fort Bragg, NC submitted a statement in support of the applicant's claim. The Assistant Retirement Services Officer stated: a. A DD Form 2656 was completed in their office for the applicant on 24 September 2013. On 28 October 2013, a certified spouse SBP election concurrence statement was mailed from their office to the applicant's spouse who was stationed in Korea as an active duty service member. Although the letter was sent by certified mail return receipt requested, neither the green card nor the mailed package itself were ever returned to their office. The applicant's spouse stated that he never received any such certified letter from their office. Their office cannot provide any proof that the spouse did or did not receive the certified letter with the spouse statement. Their office attempted to send this through as an administrative correction with Department of the Army, but was told that due to the amount of time that had passed since retirement, the applicant would need to go through the Army Board for Correction of Military Records (ABCMR) and for him to provide this statement to assist with the case. b. The applicant is a medical retiree and was going through a lot of cancer treatment during and since retirement, which is why such a large amount of time passed with her bringing up this issue. Furthermore, she was not physically able to take care of such issues at the time. Since she has exhausted all means at the lower levels the applicant asks that her SBP election on record be changed from automatic coverage to declined SBP coverage. 8. On 13 August 2015, her spouse submitted a letter stating that the applicant was diagnosed with lupus cerebritis and glioblastoma (brain cancer) while she was being medically discharged. He stated that both of these conditions affect the brain and cause memory loss. The applicant was receiving both radiation therapy and chemotherapy to combat the spread of the lupus and cancer (also known to affect memory). Due to the effects of her medical conditions, it would be deceitful and irresponsible for SBP office and her command to expect that she would remember or pursue the paperwork needed to decline enrollment in the SBP. REFERENCES: 1. 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. Elections are made by category, not by name. 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. 2. 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. 3. Public Law 105-85, enacted on 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 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: 1. The applicant underwent an informal PEB on 5 September 2013 that determined she was physically unfit for systemic lupus erythematosus, epilepsy, and bilateral hip stress fractures. 2. The applicant completed and signed a DD Form 2656 on 24 September 2013. She placed an "X" in the first block of DD Form 2656 indicating she declined participation in the SBP. However, the form does not indicate that her spouse (an active duty Soldier) signed under Section XII concurring with her decision. This declination was ineffective and she was automatically enrolled in the SBP. 3. The evidence of record shows the applicant was retired on 23 November 2013 by reason of permanent physical disability with a combined disability rating of 80 percent. 4. On 17 July 2015, the applicant's spouse submitted a notarized statement concurring with her decision to decline SBP coverage. 5. It appears that it was the intent of the applicant and her spouse to decline participation in the SBP. However, taking into consideration the applicant's medical conditions, it is reasonable to believe that this hindered her ability to ensure that her husband received the appropriate paperwork to concur with her decision to decline SBP and sign the DD Form 2656 prior to her retirement date. Her request is further supported in that, given the medical conditions, the applicant seeks to decline coverage, and she sought the declination within a reasonable period. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013920 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013920 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2