ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 30 March 2020 DOCKET NUMBER: AR20190000320 APPLICANT REQUESTS: correction of her records to terminate her Survivor Benefit Plan (SBP) election. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * DD Form 2656 (Data for Payment of Retired Personnel), dated 24 March 2017 * Defense Finance and Accounting Service-Cleveland (DFAS-CL) 7220/148 (Retiree Account Statement), dated 1 May 2017 * DFAS-CL Form 7220/148, dated 2 May 2017 * DFAS-CL Form 7220/148, dated 16 May 2017 * DFAS-CL Form 1741/142 (SBP/Retired Serviceman's Family Protection Plan Premium Bill), dated June 2017 * DFAS-CL Form 1741/142, dated May 2018 * Letter, Department of Veterans Affairs (VA), dated 13 September 2018 * DD Form 2656-2 (SBP Termination Request), dated 25 October 2018 * Letter, Applicant, dated 26 October 2018 REFERENCES: 1. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. 2. Title 10, U.S. Code, section 1448a, provides that a participant in the SBP may, subject to the provisions of this section, elect to discontinue participation in the SBP at any time during the 1-year period beginning on the second anniversary of the date on which payment of retired pay to the participant commences. A married participant may not make an election under this subsection without the concurrence of the participant's spouse. An election under subsection (a) is effective as of the first day of the first calendar month following the month in which the election is received by the Secretary concerned. 3. Title 10, U.S. Code, section 1452, provides retirees who are rated totally disabled by the VA to withdraw from SBP, provided: a. he/she has held the total disability rating for a period of at least 5 continuous years if the disability rating was awarded at retirement or b. he/she has held the disability rating for at least 10 continuous years if the disability rating was awarded and became effective later than the date of the member's retirement. c. If a member withdraws from SBP under this 100-percent VA disability provision, no annuity will be payable. A request for withdrawal requires the written consent of the member's spouse. There is no immediate refund of premiums; however, upon the death of a member who has withdrawn under this provision, a refund of SBP premiums deducted from the member's retired pay, without interest, will be paid to the widow(er). The refund is normally paid by DFAS to the widow(er) with the arrears of pay, and an additional application form is not required. FACTS: 1. The applicant states she wishes to discontinue her SBP participation based on her 100-percent VA disability rating. She requests special attention to the date of enrollment (24 March 2017), not her date of retirement (3 May 2005). Her retirement was official as of January 2017 and made retroactive to her original discharge date. 2. On 10 July 2003, she was ordered to active duty as a member of the Army National Guard in support of Operation Enduring Freedom. 3. She was honorably discharged on 2 May 2005. She completed 1 year, 9 months, and 23 days of active service during this period. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in: * item 18 (Remarks) – Disability Severance Pay -- $20,607.90 * item 23 (Type of Separation) – Discharge * item 25 (Separation Authority) – Army Regulation 635-40, paragraph 4-24b(3) * item 28 (Narrative Reason for Separation) – Disability, Severance Pay 4. On 21 November 2016, the Deputy Assistant Secretary of the Army (Review Boards) accepted the recommendation of the Department of Defense Physical Disability Board of Review (PDBR) to constructively place the applicant on the Temporary Disability Retired List (TDRL) at 50-percent disability for 6 months effective the date of her original medical separation for disability with severance pay, and then following this 6-month period re-characterize her separation as a disability retirement with a combined disability rating of 70 percent. a. The constructive TDRL period and the re-characterization of her separation as a disability retirement will result in an adjustment to her pay, providing her 50-percent retired pay for 6 months from the date of her original medical separation and then 70-percent disability retired pay effective the date the following the constructive 6-month TDRL period, minus the amount of severance pay she was previously paid at separation. b. The accepted PDBR recommendation has been forwarded to the Army Physical Disability Agency (USAPDA) for required records correction and then to DFAS to make the necessary adjustment to her pay and allowances. 5. On 1 February 2017, she was issued a DD Form 215 (Correction to DD Form 214) to show in: * item 18 (Remarks) – Delete: Disability Severance Pay -- $20,607.90 * item 23 (Type of Separation) – Retirement * item 25 (Separation Authority) – Army Regulation 635-40, paragraph 4-24b(2) * item 28 (Narrative Reason for Separation) – Disability, Temporary 6. USAPDA Order D 047-10, dated 16 February 2017, removed her from the TDRL effective 3 November 2005 and permanently retired her with a 70 percent disability in her current grade of rank. 7. On 16 February 2017, the Acting Chief, Operations Division, USAPDA, provided information to the applicant regarding her separation records and retirement benefits as a result of the approval by the Deputy Assistant Secretary of the Army (Review Boards). Approval was based on a recommendation by the Department of Defense PDBR. a. Her original separation order was revoked and an order placing her on the TDRL was published and made retroactive to the day she separated from the Army. Additionally, an order removing her from the TDRL and permanently retiring her was published by the USAPDA. b. DFAS-New London will provide her permanent retired pay and allowances effective the date of her original disability separation and account for (recoup) any severance pay previously paid. 8. She provided her DD Form 2656 (Data for Payment of Retired Personnel), dated 24 March 2017, showing in: a. Section I (Pay Identification), item 3 (Retirement/Transfer Date), 3 May 2005; b. Section V (Designation of Beneficiaries for Unpaid Retired Pay), item 13, she named her husband, G____ L___ D____, Jr. and designed a share of 100 percent; c. Section VI (Federal Income Tax Withholding Information), item 14 (Marital Status), she marked: Married; d. Section VIII (Dependency Information): (1) item 22 (Spouse), G____ L___ D____, Jr.; (2) item 23 (Date of Marriage), 3 October 2014; and e. Section IX (SBP) Election: (1) item 26a, she elected coverage for spouse only and indicated she did not have dependent child(ren); (2) item 27a (Level of Coverage), she elected coverage based on full gross pay; and (3) item 28 (Insurable Interest Beneficiary), she named her spouse G____ L___ D____, Jr.; f. Section X (Remarks), item 29 (Use this section to continue an item or make additional comments), she stated: My VA rating is 100% Total & Permanent, Homebound and Individual Unemployability. My rating has continued to increase as additional, deployment/war related medical issues have been diagnosed and treated. Due to a refusal in medical attention prior to and during my medical board process, many combat related disabilities have since been recognized by the VA yet not by the Army. These disabilities should be taken into account when determining my overall retirement benefits. g. Section XI (Certification), item 30 (Member), states: Also, I have been counseled that I can terminate SBP participation with my spouse's written concurrence, within one year after the second anniversary of commencement of retired pay. However, if I exercise my option to terminate the SBP, future participation is barred. 9. She provided her DFAS-CL Form 7220/148 (Retiree Account Statement), dated 1 May 2017, showing her SBP costs for SBP spouse-only coverage was $58.28. 10. She provided her DFAS-CL Form 1741/142 (SBP/Retired Serviceman's Family Protection Plan Premium Bill), dated June 2017, showing she owed $58.28 by 28 June 2017. 11. She provided a letter from the Executive Director, Benefits Assistance Service, VA, dated 13 September 2018, stating: a. She has one or more service-connected disabilities. Her combined service- connected evaluation is rated at 100 percent. b. She is considered to be totally and permanently disabled due solely to her service-connected disabilities. She became totally and permanently disabled due to her service-connected disabilities effective 14 November 2009. 12. She provided her DD Form 2656-2 (SBP Termination Request), dated 25 October 2018, showing in: a. Section II (Retired Member Identification), item 3 (Retirement Date), 3 May 2005; b. Section III (Termination Request), item 4b (Date Signed), 25 October 2018; c. Section IV (Spouse Concurrence): (1) item 5a (Signature), her spouse signed the form; (2) item 5b (Date Signed), 26 October 2018; and (3) item 5c (Printed Name – Last, First Middle Initial), D____, G____ L.; and d. Section V (Certification), a notary public witnessed the applicant's spouse's signature on 26 October 2018. 13. In a letter to the Army Review Boards Agency, dated 26 October 2018, she stated: a. She was originally discharged from Fort Campbell, KY, in May 2005. She was not permitted the opportunity for "exit counsel." Once she received the medical discharge decision in writing, she was directed to the Transition Point to have her official orders published. She then took the orders to the travel office to arrange travel to her home of record in California. b. She was never provided any sort of counsel by her home unit or any other Army office. It wasn't until January 2017 when she received her retroactive medical retirement packet that she was advised to contact the nearest Retirement Services Officer for counsel. c. Based on the information she provided in the Remarks section of her DD Form 2656, anyone reviewing her form should have denied her enrollment in the SBP. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, her record of service, her medical disability separation, the reevaluation of her medical conditions, her placement on the TDRL and subsequent retroactive permanent disability retirement. The Board considered the applicant’s request to terminate SBP and her spouse’s concurrence with the declination election. Based on a preponderance of evidence, the Board determined that the denial of the applicant’s requested declination of SBP was unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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 as follows: - Show the applicant submitted her election to decline SBP (with her spouse’s concurrence) prior to the date of her retirement due to permanent disability, - That her request was by accepted and processed by the appropriate authority, and; - That she be refunded any premiums previously collected as a result of this correction. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190000320 5 1