IN THE CASE OF: BOARD DATE: 1 December 2015 DOCKET NUMBER: AR20150003861 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, in effect, correction of his military records to show he elected not to participate in the Survivor Benefit Plan (SBP). 2. The applicant states he never elected SBP coverage. An SBP election was automatically processed and has been deducted from the retirement pay he was not supposed to receive. He has paid back all funds received. He should not be held responsible for an SBP debt. 3. The applicant provides copies of * State of Mississippi Marriage License, issued in July 2008 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending on 1 July 2009 * National Guard Bureau (NGB) Form 22, effective date 13 February 2014 (Individual Copy 1) * NGB Form 22, effective date 13 February 2014 (MPRJ Copy 3) * NGB Form 55B (Honorable Discharge, Army National Guard) dated 13 February 2014 * Orders 122-810, Mississippi National Guard (MIARNG), dated 2 May 2014 * NGB Form 23B (Army National Guard Retirement Points History Statement), prepared 28 July 2014 * Defense Finance Accounting Service (DFAS)-Cleveland (DFAS-CL) Form 7220/148 (Retiree Account Statement), with effective date 23 December 2014 * DFAS-Cleveland (DFAS-CL) Form 1741/142 (SBP/RSFPP) Premium Bill, dated January 2015 * DFAS-CL Form 1741/142, dated February 2015 * Spouse’s notarized concurrence to not participate in SBP, dated 6 November 2015 CONSIDERATION OF EVIDENCE: 1. Orders A-01-301484, U.S. Army Human Resources Command (HRC) dated 25 January 2013, ordered the applicant to active duty for the purpose of participating in Reserve Component Managed Care-Evaluation/Disability Evaluation System Related Medical Appointments. 2. Orders D010-03, U.S. Army Physical Disability Agency, dated 10 January 2014, released the applicant from assignment and duty due to physical disability incurred while entitled to basic pay and under conditions that permit retirement for permanent physical disability. These orders announced his placement on the retired list with a retired grade of E-6, on 14 February 2014. 3. An NGB Form 22, effective 13 February 2014, shows the applicant was separated from the MIARNG and transferred to the U.S. Army Reserve (USAR) Control Group Retired Reserve, due to placement on the permanent disability retired list. This form further shows that he was not available to sign the document. 4. Orders 122-810, MIARNG, dated 2 May 2014, discharged the applicant from the MIARNG and placed him on the temporary disability retired list (TDRL) effective 22 January 2011. 5. DFAS-CL Form 7220/148, dated 23 December 2014 shows the applicant has an SBP cost of $135.98 per month for spouse only coverage based on his full retired pay of $2,091.97. 6. DFAS-CL Form 1741/142, dated February 2015, indicates that the applicant had a balance of $1,475.35 due for SBP. The unpaid balance is accruing a 6 percent interest charge. 7. An email communication from DFAS, dated 1 June 2015, states that DFAS has no documents on file pertaining to the applicant’s SBP. 8. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. 9. A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married). 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 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. 12. Information provided by the Department of Veterans Affairs (VA) shows that in 2015, a veteran who is married and has no children, and has a service connected disability rated at 100 percent, may receive a monthly benefit of $3,068.90 in lieu of his military retirement. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his military records should be corrected to show he elected not to participate in the SBP. He further contends that he should not be responsible for an SBP debt. 2. The available evidence shows that the applicant was retired due to a physical disability. His DFAS Retiree Account Statement shows he has SBP coverage for his spouse based on his full retired pay. 3. DFAS records do not contain any documentation showing the applicant made an election to not participate in the SBP. Therefore, it appears that an election was made for him in accordance with the governing law providing full coverage for his spouse. 4. It is reasonable to presume that the applicant’s disability process ran its course and prevented his presence at the time of his separation. This would explain why his signature is missing from the NGB Form 22 and indicate that he was not given an opportunity to properly decline to participate in the SBP. 5. The applicant’s spouse has provided a properly notarized statement saying that she concurs with the declination to participate in the SBP. 6. In view of the above, and as a matter of equity, the applicant’s request to not participate in the SBP should be granted. 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: a. showing that the applicant timely filed a DD Form 2656 and that it was accepted by DFAS; b. showing he elected not to participate in the SBP with the concurrence of his spouse; c. cancelling any debt against the applicant that resulted from charges for participation in the SBP; and d. refunding any SBP premiums already collected. __________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) AR20120021023 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003861 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1