IN THE CASE OF: BOARD DATE: 24 March 2016 DOCKET NUMBER: AR20150005228 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 correction of his military record to show he declined the Survivor Benefit Plan (SBP) prior to the first day of his entitlement to retired pay. 2. The applicant states he did not complete a DD Form 2656 (Data for Payment of Retired Personnel) and he did not want SBP. He was automatically enrolled and he wants to decline it. If he was never approved to be enrolled into SBP he will not pay for it. He declined this service and knows that this debt should be erased and the SBP be terminated. He never received a form to either decline or accept it and was placed on automatic enrollment. 3. The applicant provides: * marriage certificate, dated 18 September 2005, Prince George's County State of Maryland * an information paper, dated 4 December 2014, from U.S. Army Human Resources Command (HRC) * a letter, dated 4 February 2015, from Army Review Boards Agency (ARBA) * statement, dated 12 March 2015, from his wife CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. On 18 September 2005, the applicant and his wife were married and on 3 January 2006 he enlisted in the Regular Army. 3. On 12 June 2009, a Physical Evaluation Board (PEB) found him physically unfit for duty with a combined disability rating of 70 percent. The PEB recommended he be placed on the Temporary Disability Retired List (TDRL) with a reexamination in March 2010. 4. On 30 August 2009, he was retired and placed on the TDRL on 31 August 2009. There is no DD Form 2656 in his official military personnel file. 5. On 11 January 2010, he submitted a DD Form 2656-2 (SBP Termination Request), signed by both him and his wife. A letter, dated 17 June 2015, from the Defense Finance and Accounting Service (DFAS) informed he had only been retired 6 months, he had a 1 year window from the 25th month through the 36th month after his first eligibility to receive retired pay to terminate his SBP. It is unknown why it took DFAS so long to respond to his request or if the date of the letter is in error. DFAS provided him a DD Form 2656-8 (SBP - Automatic Coverage Fact Sheet). 6. On 4 June 2014, a PEB found him physically unfit for duty with a combined disability rating of 60 percent. The PEB recommended he be permanently retired for disability. 7. On 23 June 2014, he was removed from the TDRL and permanently retired the following day. 8. On 12 September 2014, he contacted DFAS concerning a debt as a result of his SBP. A letter, dated 11 October 2014, from DFAS, Retired and Annuitant Pay, informed him they did not have a record of his original DD Form 2656 signed prior to retirement and that if he had a copy of the document he should forward it to that office. Any DD Form 2656 signed after his retirement date is considered invalid. Since he did not discontinue participation in SBP during the 25th through 36th month after commencement of retired pay, his SBP coverage will remain in effect. They provided a DD Form 2656-8 so his coverage could be correctly updated. 9. On 24 November 2014, he contacted HRC and requested an official copy of his DD Form 2656. 10. On 4 December 2014, HRC notified him a copy of a DD Form 2656 was not located at that command. 11. In response to a letter, dated 4 February 2015, from ARBA, the applicant provided a notarized statement from his wife. She stated she concurred that it may not be in her best interest to cancel SBP. However, she would still like to cancel SBP. 12. 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 1d states a member on the TDRL is eligible to elect SBP coverage until the member is no longer eligible for disability retired pay. b. 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 SBP. 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. 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. 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 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. By his own admission, the applicant did not make an SBP election prior to the first day of his entitlement to retired pay, 31 August 2009. Due to his failure to decline SBP coverage with spousal concurrence, under the provisions of paragraph 2a of DODI 1332.42, automatic coverage was entered for spouse only coverage based on the full amount of his retired pay. This election is irrevocable. 2. However, a member may elect to discontinue participation with spousal concurrence 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. 3. On 11 January 2010, he submitted a DD Form 2656-2 with spouse concurrence to withdraw from SBP. DFAS responded to his request informing him he was not eligible to withdraw from SBP because he had only been retired for 6 months. DFAS advised him he had a 1 year window to withdraw from the SBP starting with the 25th month through the 36th month after his eligibility to receive retired pay. 4. However, DFAS did not respond to his request until 17 June 2015, over 5 years from the date of his request and 3 years after the last date the applicant was eligible to withdraw from SBP. The fact that DFAS did not provide a timely response to his request may have inhibited his opportunity to withdraw from SBP starting with the 1st day of the 25th month of his entitlement to receive retired pay. 5. His first day of entitlement to receive retired pay was 31 August 2009. He was eligible to submit a request to withdraw from SBP on 1 September 2011. It would be equitable in this case to correct his record to show he submitted a request, with notarized spousal concurrence, to withdraw from SBP on 1 September 2011. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ____X___ ____X___ ____X___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to show he submitted a request, with notarized spousal concurrence, to withdraw from SBP on 1 September 2011 and that it was received and approved by DFAS in a timely manner. 2. The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to declining SBP prior to his retirement date. _______ _ _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) AR20150005228 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005228 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1