IN THE CASE OF: BOARD DATE: 5 December 2022 DOCKET NUMBER: AR20220003275 APPLICANT REQUESTS: * reversal of his Survivor Benefit Program election retroactive to the date of his disability retirement * retroactive reimbursement of SBP payments to the date of his retirement APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 20 December 2022 * Self-authored Statement, 20 December 2022 * Physical Disability Board of Review (PDBR), memorandum, 28 December 2018 (PDRB Recommendation of (Applicant)) * USAPDA, Proceedings, Case Number , 28 December 2018 * DD Form 2656 (Data for Payment of Retired Personnel), 12 June 2021 * Headquarters (HQ), U.S. Army Garrison, Fort Drum Orders 130-1022, 10 May 2019 * HQ, U.S. Army Garrison, Fort Drum Orders 130-1024, 10 May 2019 * Deputy Assistant Secretary of the Army (DASA-RB), Army Review Boards Agency (ARBA) letter, 8 May 2019 * DASA-RB, Decision memorandum, 8 May 2019 * Defense Finance Accounting Service (DFAS) letter, 1 May 2020 * DFAS Retiree Account Statement, 1 June 2020 * DFAS Invoice, SBP, 5 June 2020 * DFAS letter to Applicant, 24 September 2020 * email, , 15 March 2021 FACTS: 1. The applicant states, in effect: a. He was not informed of how to complete his application for retirement (SBP) (DA Form 2656. He has been working with DFAS and is unable to get a review of his case by Army G-1 Retirement Services. b. When he received his orders, it was not clear that he should correct the SBP option with the Retirement Service Officer and he did not know of the 1 year statute for his election. c. His SBP coverage election should be declined as he did not want it. 2. The applicant provides copes of: a. A DD Form 149 with a self-authored statement outlined in paragraph 1. b. A memorandum from the PDBR to the DASA, ARBA, 28 December 2018, recommending the DASA approve of the PDRB disability rating of 30% instead of 0%. c. Record of Proceedings, Case Number , PDBR, 28 December 2018. d. A letter from the PDBR to the applicant, 28 December 2018, recommending the applicant accept his recharacterization of his narrative reason for separation to reflect a permanent disability rating of 30%. e. A letter from the DASA, ARBA, 8 May 2019, notifying the applicant of the DASA decision to accept the PDRB recommendation and that it will be forwarded to the USAPDA for correction of his records. f. A memorandum from the DASA, ARBA, 8 May 2019, directing the USAPDA correct his records and adjust his pay and allowances accordingly. This memorandum further states the applicant will have the opportunity to elect SBP and medical TRICARE retiree options. g. Orders 130-1024, 10 May 2019, issued by U.S. Army Installation Management Command, Fort Drum, placing him on the retirement list, effective 17 December 2005. h. Orders 130-1022, 10 May 2019, issued by U.S. Army Installation Management Command, Fort Drum, revoking Orders 306-1001, issued by U.S. Army Installation Management Command, Fort Drum, on 2 November 2005. i. A letter from the USAPDA to the applicant, 3 June 2019, notifying him the corrections to his record placed him on the retired list with a 30% disability retroactive to the day he separated. This letter further notified him, in part, he should immediately contact the RSO for assistance in completing the DD Form 2656 to activate his retired pay account and that the RSO would provide him with retirement and SBP counseling. j. A letter from DFAS to the applicant, 31 October 2019, notifying him DFAS could not establish his retirement pay account because it did not have a DD Form 2656 from his branch of service. DFAS provided him an address to contact his RSO. k. A letter from DFAS to the applicant, 1 May 2020, notifying him his record was corrected to reflect he was placed on the PDRL effective 17 December 2005, and he was entitled to retroactive retired pay of $7,080.28. l. A Retiree Account Statement from DFAS, 1June 2020, showing an itemized description of credits and debits to his account. The SBP costs were $2,269.51. m. An invoice from DFAS, 5 June 2020, notifying him he was being charged a $15.96 SBP premium in June 2020 for his beneficiary election. n. A DFAS letter, 24 September 2020, responding to his request to terminate SBP coverage and notifying him he only had 1 year window to withdraw from SBP starring with the 25 month through the 36th month after his first eligibility to receive retired pay. Since he had been retired 176 months, he was no longer eligible to withdraw. o. The applicant's wife email, 15 March 2021, in which she explains their SBP misunderstanding and their attempt to reverse the SPB charges. p. A completed DD Form 2656 completed on 12 June 2021, showing he had eligible dependents under SBP but he elected not to participate in the plan. The date of: * birth of his first child, (day) * divorce from his first wife * birthdate of his children * marriage to his second wife, (day) 3. A review of the applicant's service records shows: a. He was born on (day) July b. On 3 April 2002, he enlisted in the Regular Army (RA) for a period of 3 years. He completed basic combat training and was awarded military occupational specialty 11B (Combat Infantryman). His marital status was already married to when he enlisted. c. His first child, was born on (day) d. On 11 January 2005, he reenlisted in the RA for a period of 4 years. e. On 10 August 2005, a Medical Evaluation Board (MEB) Summary shows he was involved in a motor vehicle accident on 12 February 2005, resulting in a close right wrist perilunate dislocation. Subsequent surgery resulted in significant right wrist pain and medial neuropathy with failure to improve and maximum medical benefit. The Board found that he had the following medical conditions/defects: * Chronic right wrist median neuropathy, medically unacceptable IAW Army Regulation 40-501, paragraph 3-30j * Right wrist arthrofibrosis status post open reduction and ligament repair of perilunate dislocation, medically unacceptable IAW Army Regulation 40-501, paragraph 3-14g(3) f. On 23 September 2005, MEB Proceedings (DA Form 3947) diagnosed him with chronic right wrist median neuropathy, medically unacceptable IAW Army Regulation 40-501 (Standards of Medical Fitness); right wrist arthrofibrosis, status post open reduction and ligament repair of perilunate dislocation, and medically unacceptable IAW Army Regulation 40-501. The MEB referred him to a Physical Evaluation Board (PEB). g. On 20 October 2005, an informal Physical Evaluation Board (PEB) (DA Form 199) found the applicant physically unfit and recommended a disability rating of 0% (zero percent) and that his disposition be separated with severance pay. (1) The Board considered the applicant's disability, right (dominant) wrist pain with a history of motor vehicle accident resulting in a closed perilunate dislocation. He developed acute carpal tunnel syndrome requiring surgical correction including ligament repair and wrist pain. The Board concluded that his medical condition prevented performance of duty in his grade and specialty. (2) The Board noted his disability rating was less than 30 Percent. Soldiers with a disability rating of less than 30%, with less than 20 years of service a computed under Title 10, U.S. Code, Section 1208 (Active plus Reserve Component Service) require separation from service with disability severance pay. (3) His case was adjudicated as part of the Integrated Disability Evaluation System (IDES). h. On 25 October 2005, the PEB Liaison Officer informed him of the findings and recommendations of the Informal PEB and explained to him the result of the findings and recommendations and his legal rights pertaining thereto. i. On 25 October 2005, he concurred with the findings and recommendations of the Informal PEB, he waived a formal hearing of his case, and he did not request a reconsideration of his VA ratings. j. On 26 October 2005, an official from the Physical Disability Branch, U.S. Army Human Resources Command, approved the PEB findings that he was physically fit for active military service. k. Orders issued by Headquarters, 10th Mountain Division (Light Infantry) and Fort Drum, Fort Drum, on 2 November 2005, reassigned him to U.S. Army Transition Point for transition processing. These orders show he was assigned a discharge date of 16 December 2005, with a 0% (zero percent) disability and he was authorized disability severance pay in the pay grade E-4 based on 3 years, 8 months, and 14 days of service as computed by Section 1208 of Title 10, U.S. Code. l. On 16 December 2005, he was honorably discharged. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years, 8 months, and 14 days of net active service and was discharged at the grade/pay grade of specialist/E-4. It further shows in: * Block 18 (Remarks) – in part, "disability severance pay – $14,296.80" * Block 23 (Type of Separation) – Discharge * Block 25 (Separation Authority) – Army Regulation (635-40), Chapter 4- 24B(3) * Block 26 (Separation Code) – JFL * Block 27 (Reentry code) – 3 * Block 28 (Narrative Reason for Separation) – Disability, Severance Pay m. On 22 November 2006, he was divorced from his first wife, n. He was married on (day) March 2007 to his spouse, o. His second and third children were born on (day) p. On 1 May 2017, the applicant requested the Department of Defense, Physical Disability Board of Review (DoD PDBR) (DD Form 294 (Application for a Review by the PDBR of the Rating Forwarded Accompanying a Medical Separation from the Armed Forces of the United States)) consider additional conditions which resulted in his disability separation with severance pay from the U.S. Army. He requested consideration for post-traumatic stress disorder while he was on active duty during a deployment to Afghanistan. q. On 28 December 2018, the Department of Defense, Physical Disability Board of Review (DoD PDBR) considered the applicant's request for review of another condition not identified by the MEB and PEB. The Board found in the matter of the right wrist condition, and the panel majority recommended a disability rating of 30% (coded 8515 IAW the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) Section 4.124a). r. On 28 December 2018, the President, PDBR forwarded its recommendation to the Deputy Assistant Secretary of the Army-Review Boards Agency (DASA-RB), that the DASA accept the proposed decision to recharacterize the applicant's permanent disability retirement rating of 30% instead of 0%. s. On 8 May 2019, the DASA-RB, approved the recommendation of the President, DoD PDRB, to recharacterize the applicant's separation as a permanent disability retirement with the combined disability rating of 30% effective the date of his original medical separation for disability with severance pay. The DASA-RB further directed: * providing the applicant's separation document showing that he was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay * provide orders showing that he was retired with permanent disability effective the date of the original medical separation for disability with severance pay * adjust pay and allowances accordingly * pay and allowance adjustment would account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay * affording the applicant the opportunity to elect SBP and medical TRICARE retiree options t. On the same date, the DASA-RB notified the applicant of acceptance of the DoD PDRB recommendation and provided a copy of the Board's recommendation and record of proceedings. u. Orders 130-1022, issued by HQ, U.S. Army Installation Management Command, Fort Drum, 10 May 2019, revoked orders 306-1001 issued by HQ, US Army Garrison, Fort Drum 2 November 2005. v. Orders 130-1024, issued by HQ, U.S. Army Installation Management Command, Fort Drum, 10 May 2019, released him from his assignment because of physical disability at 30% disability, effective 16 December 2005. These orders further notified him, in part, to contact the RSO to schedule an in-office appointment to complete SBP counseling and his DD Form 2656. w. On 3 June 2019, he was issued a DD Form 215 (Correction to DD Form 214) amending his DD Form 214 issued on 16 December 2005 and showing in: * Block 18 – in part, "disability severance pay – $14,296.80" was deleted * Block 23 – Retirement * Block 25 – Army Regulation 635-40, Chapter 4-24B(1) * Block 26 – SFJ * Block 27 – 4 * Block 28 – Disability, Permanent x. On 3 June 2019, the USAPDA provided the applicant a letter with information concerning the corrections to his disability separation records and retirement benefits as a result of approval by the DASA, ARBA. The letter notified and provided the applicant, in part: * to immediately contact the nearest installation Retirement Services Officer (RSO) for assistance with completing the DD Form 2656 to activate his retired pay account * the RSO would provide him SBP counseling * with a website line listing RSOs and the DFAS address to return a copy of his completed DD Form 2656 * questions regarding his pay and allowances should be directed to DFAS BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Based upon the preponderance of the evidence, the Board agreed that it was through no fault of the applicant that he was not knowledgeable about the requirements to decline SBP coverage following placement on the PDRL. The Board agreed the record should be corrected to show he properly declined the Survivor Benefit Plan (SBP) on 17 December 2005, with proper spousal concurrence, and his election was received and processed in a timely manner by the appropriate DFAS office. Such relief should result in the repayment of any previously paid SBP premiums. 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 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 he properly declined the Survivor Benefit Plan (SBP) on 17 December 2005, with proper spousal concurrence, and his election was received and processed in a timely manner by the appropriate DFAS office. Such relief should result in the repayment of any previously paid SBP premiums. 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. REFERENCES: 1. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Public Law 105-85, enacted 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. Reservists who elected an option under the RCSBP will continue to have the Reservist Portion cost deducted from their retired pay. 3. 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. Retiring members and spouses were to be informed of the SBP options and effects. 4. 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. 5. Army Regulation 40-501 (Standards of Medical Fitness), effective 14 June 2017, applies to the active Army, the Army National Guard/Army National Guard of the United States, and the U.S. Army Reserve. a. This regulation governs: * medical fitness standards for enlistment, induction, and appointment, including officer procurement programs * medical fitness standards for retention and separation, including retirement * medical fitness standards for diving, Special Forces, Airborne, Ranger, free- fall parachute training and duty, and certain enlisted military occupational specialties and officer assignments * medical standards and policies for aviation * physical profiles * medical examinations and periodic health assessments. b. The proponent of this regulation is The Surgeon General. The proponent has the authority to approve exceptions or waivers to this regulation that are consistent with controlling law and regulations. Activities may request a waiver to this regulation by providing justification that includes a full analysis of the expected benefits and must include formal review by the activities' senior legal officer. All waiver requests will be endorsed by the commander or senior leader of the requesting activity and forwarded through their higher headquarters to the policy proponent. 6. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40. a. The objectives of the system are to: * maintain an effective and fit military organization with maximum use of available manpower * provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability * provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected b. Soldiers are referred to the PDES: * when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board * receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board * are command-referred for a fitness-for-duty medical examination * are referred by the Commander, Human Resources Command c. The PDES assessment process involves two distinct stages: the MEB and the PEB. The purpose of the MEB is to determine whether the service member’s injury or illness is severe enough to compromise their ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty. A designation of “unfit for duty” is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are “separated” receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees. d. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of their office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220003275 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1