IN THE CASE OF: BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150004700 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, that he be allowed to withdraw his Survivor Benefit Plan (SBP) election. 2. The applicant states his wife attended out-processing with him at Fort Dix, NJ on 24 October 2014. Since the SBP benefits were for her, they decided that it should be her decision whether or not they opted for SBP. His wife is originally from Colombia, so English is not her first language. Mr. P, the SBP representative at Fort Dix, told her that if she opted to enroll in the SBP, she could cancel within 24 months of enrollment. After their SBP appointment, they went upstairs to Finance. They inquired about how much retirement pay he would receive and how much the SBP would cost. Finance said they didn't have the ability to compute his pay, that the Defense Finance and Accounting Service (DFAS) would determine that. His wife was able to crunch the numbers on her own and thought that nearly $200 a month would be too much to be taken out of their limited budget. 3. His wife called DFAS on 12 November 2014 and they told her they could cancel the SBP, but they would have to hurry and send in a DD Form 2656-2 (SBP Termination Request) to DFAS. He received his first Retiree Account Statement on 8 November 2014 and it had the SBP costs subtracted from his pay. He called DFAS and was told that his DD Form 2656-2 hadn't posted yet. The lady at DFAS wasn't sure whether they would terminate the SBP. His wife called DFAS on 19 November 2014 and was told they would not terminate the SBP; they should send an application to the Army Board for Correction of Military Records (ABCMR). 4. The applicant provides: * DFAS-CL 7220/148 (Retiree Account Statement) effective 18 February 2015 * Statement, dated 17 March 2015, from his wife * DD Form 2656 (Data for Payment of Retired Personnel) CONSIDERATION OF EVIDENCE: 1. He previously completed 5 years, 1 month, and 17 days of active service and 10 years, 2 months, and 21 days of inactive service. 2. On 18 February 1997 he was ordered to full-time National Guard duty in an Active Guard/Reserve status where he served until his retirement. 3. In a memorandum, dated 1 November 2001, the Massachusetts National Guard notified him he had completed the required years of service for eligibility for retired pay upon application at age 60 (his 20-year letter). 4. On 2 February 2002, he completed a DD Form 1883 (SBP Election Certificate). He indicated he was not married, had no dependent children, and he elected Option A (decline to make an election at this time). 5. On 13 June 2005, he was married. His wife's birthplace is shown on the marriage certificate as Ibague, Colombia. He has one son, born on 7 July 2009. 6. On 31 October 2014, he was retired and placed on the Retired List the following day. He had completed a total of 27 years, 11 months, and 4 days of active service. There is no DD Form 2656 in his official military personnel file (OMPF). 7. The applicant provided a statement, dated 17 March 2015, from his wife. She stated: a. She is originally from Colombia and there is always a language barrier because of her accent and the fact that she has depression and anxiety issues. b. The day she and her husband went to see Mr. P she was tired and anxious because her husband wasn't going to be working anymore and his salary wasn't going to pay the bills. He kept looking to her husband and talking to him very fast. Her husband had some type of attention deficit which has nothing to do with his cognitive or ability to function on a regular basis. c. When Mr. P talked to her about survivor benefits he talked to her at a normal speed (in a) technical way and she misunderstood his point. She repeated to him and maybe because of her accent, he said yes, you got it. She thought that she had 2 months to decide if she wanted to keep the survivors benefit. For her, it was better to get it and talk about it with her husband. One week later they decided they needed the money and they called to cancel the SBP. 8. In response to a letter, dated 5 February 2015, from the Army Review Boards Agency (ARBA), the applicant provided a DD Form 2656: * An "X" was placed in block 26g "I ELECT NOT TO PARTICIPATE IN SBP" * Section XI - Certification does not contain the applicant's signature * Section XII - SBP Spouse Concurrence contains his wife's signature and is dated and notarized on 18 March 2015 9. The applicant's DFAS-CL 7220/148, with an effective date of 18 February 2015, shows he is paying for spouse and children SBP coverage based on the full amount of his retired pay. 10. Department of Defense Instruction (DODI) 1332.42 provides the responsibilities and procedures for administering the Survivor Annuity Program, which is comprised of the Survivor Benefit Plan (SBP) and the Reserve Component Survivor Benefit Plan (RC-SBP). Enclosure (3) to this instruction provides the procedures for administering the SBP and the RC-SBP. a. Paragraph 2a states a member entitled to retired pay based on active service who has a spouse or dependent child is considered a participant having maximum SBP coverage, unless the member, with spousal concurrence if married, elects less-than-maximum spouse coverage, child-only coverage, or not to participate in the Program. Unless such election is made prior to the first day of entitlement to retired pay, automatic coverage for maximum spouse or spouse and child coverage shall be entered. An election under this paragraph is irrevocable, unless otherwise provided by law, if not revoked before the date on which the person first becomes entitled to retired pay. b. Paragraph 2b states a RC member who has a spouse or dependent child upon being notified of eligibility to receive retired pay is considered a participant having maximum RC-SBP coverage, unless the member, with spousal concurrence if married, elects less-than-maximum spouse coverage for an immediate annuity, child-only coverage, deferred coverage, or not to participate in the Program. An election for less-than maximum RC-SBP coverage must be received by the member’s Service within the 90-day period immediately following such notification of eligibility. An election under this paragraph is irrevocable, unless otherwise provided by law, if not revoked before the end of the 90-day period. c. Paragraph 5a states written spousal concurrence is required when the member elects to decline coverage or provide the spouse with less than the maximum SBP coverage available, to include electing child-only coverage, and when a member eligible for RC-SBP declines coverage or elects coverage that provides less than a maximum immediate spouse annuity. The signature of the spouse must be notarized. The requirement to have the spouse’s signature notarized is not to suggest that the spouse has received additional counseling regarding the option being selected. It simply provides certification that the spouse signed the form. d. Paragraph 7e states a member may elect to discontinue participation by submitting DD Form 2656-2 (SBP Termination Request) during the period that is more than 2 years, but less than 3 years, after the first date of entitlement to receive retired pay. The member must submit the request no earlier than the 1st day of the 25th month, and no later than the last day of the 36th month from the date of entitlement to retired pay, with spousal concurrence if applicable. A member electing to terminate coverage is not eligible for continuation in the Program; however, the member has 30 days after submitting a request to discontinue participation to revoke the request. DISCUSSION AND CONCLUSIONS: 1. The applicant and his wife contend that English is her second language and she thought she could cancel the SBP election within 2 years or 24 months. However, she is unable to cancel the SBP election. 2. Based on the applicant's statement and his DFAS-CL 7220/148, it appears he elected spouse and children SBP coverage based on the full amount of his retired pay in October 2014. This election became irrevocable on 1 November 2014, the day he became entitled to retired pay. 3. The DD Form 2656 he provided in response to a letter from ARBA, dated 5 February 2015, is not signed by him and his wife's signature is dated and notarized 18 March 2015, four and a half months after he became entitled to retired pay. 4. He may elect to discontinue participation by submitting a DD Form 2656-2 during the period that is more than 2 years, but less than 3 years, after the first date of entitlement to receive retired pay. He must submit the request no earlier than the 1st day of the 25th month, and no later than the last day of the 36th month from the date of entitlement to retired pay, with spousal concurrence if applicable. 5. He is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately so as to be prepared to submit his request to DFAS when eligible. A listing of RSOs by country, state, and installation is available on the Internet at the website http://www.armyg1.army.mil/RSO/rso.asp. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ___X_____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ __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) AR20150004700 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004700 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1