IN THE CASE OF: BOARD DATE: 14 April 2016 DOCKET NUMBER: AR20150006633 BOARD VOTE: ____X_____ ___X____ ____X____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 14 April 2016 DOCKET NUMBER: AR20150006633 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 to show: a. the applicant and his spouse signed the DD Form 2656 and declined to participate in the SBP; b. the applicant's DD Form 2656 was timely received and processed by the appropriate office at Defense Finance and Accounting Service; and c. the Defense Finance and Accounting Service issuing the applicant a refund for all SBP premiums previously paid ______________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. IN THE CASE OF: BOARD DATE: 14 April 2016 DOCKET NUMBER: AR20150006633 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 records to show he elected to decline participation in the Survivor Benefit Plan (SBP). 2. The applicant states his SBP election on file is not correct. He was not properly counseled on submitting his documents for declining SBP coverage prior to retirement. 3. The applicant provides: * Marriage License, dated 8 December 1989 * Orders 092-0320, dated 2 April 2013 * Amendment Orders 098-0314, dated 8 April 2013 * DD Form 2656 (Data for Payment of Retired Personnel), dated 19 April 2013 * Spouse SBP Election Concurrence Statement, 9 March 2015 * SBP Affidavit, signed 10 April 2015 CONSIDERATION OF EVIDENCE: 1. The applicant was born on 19 August 1960. He enlisted in the Regular Army on 7 August 1979 and he was released from active duty on 5 August 1982. On the following date, he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement). On 10 February 1984, he was reassigned to a Troop Program Unit and he continued to serve in the USAR through a series of reenlistments. 2. He was married on 12 December 1989. 3. His record contains a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated 11 July 2001. 4. On 24 August 2001, he completed a DD Form 1883 (SBP Election Certificate) and elected Reserve Component SBP (RCSBP) for spouse and children coverage, full base amount, option 9c. 5. He was ordered to active duty on 3 January 2011 in support of Operation New Dawn. 6. The applicant underwent an MEB on an unknown date. 7. On 5 March 2013, an informal PEB determined he was physically unfit for military service based on his conditions of degenerative arthritis of the thoracolumbar spine, cervical spine, and right and left knee. The PEB recommended permanent disability retirement with a combined disability rating of 70 percent. 8. On 19 April 2013, he completed a DD Form 2656 and elected not to participate in the SBP. His spouse did not sign the DD Form 2656 under Section XII (SBP Spouse Concurrence) to indicate she concurred with the applicant's decision to decline participation in the SBP. This form is not notarized. 9. On 18 June 2013, he was retired by reason of permanent physical disability. On the following day, he was transferred to the Retired Reserve. At the time of his discharge, he had completed 34 years and 8 days total service for retired pay. 10. In a notarized statement, dated 9 March 2015, his spouse concurred with his decision to decline SBP coverage. 11. In a SBP Affidavit, dated 10 April 2015, he indicated that he was improperly counseled about SBP prior to his retirement and he declined SBP participation. He and his spouse signed the affidavit and it was notarized. REFERENCES: 1. 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. The member may elect not to participate (with their spouse's concurrence, if required), but the election must be made before the first day for which the member is eligible to receive retired pay. 2. Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60. Three options are available: (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60, but delay payment of it until the date of the member's 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. 3. 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 provided less than maximum spouse coverage. 4. 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. The effective date of termination is the first day of the first calendar month following the month in which the election is received by the Secretary concerned. DISCUSSION: 1. The applicant was issued his 20-Year Letter on 11 July 2001 and he completed a DD Form 1883 electing RCSBP for spouse and children coverage, full base amount, option 9c, one month later. 2. The applicant completed a DD Form 2656 on 19 April 2013 and elected not to participate in SBP. His spouse concurred with his decision. 3. The evidence of record shows the applicant was retired on 18 June 2013 by reason of permanent physical disability with a combined disability rating of 70 percent. Because he retired under a different authority (disability versus non-regular), he was authorized to make a new election instead of being bound by his original 2001 RCSBP election. The applicant completed a DD Form 2656 on 19 April 2013 and elected not to participate in the SBP. His spouse concurred with his decision. 4. On 9 March 2015, the applicant's spouse submitted a notarized statement concurring with his decision to decline his SBP coverage. 5. On 10 April 2015, the applicant submitted a notarized statement indicating he was improperly counseled about the SBP prior to his retirement and he declined SBP participation. His spouse concurred with his decision. 6. It appears that it was the intent of the applicant and his spouse to decline participation in the SBP. As a matter of equity, it would be appropriate to correct his records to show he declined to participate in the SBP with his spouse's concurrence, and to refund him any paid premiums. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150006633 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150006633 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2