BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20150017595 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 BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20150017595 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 elected, in a timely manner, not to participate in the Survivor Benefit Plan and his spouse concurred with his election, before he retired * reimbursing him any premiums paid as a result of this correction ___________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. BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20150017595 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 records to show he elected not to participate in the Survivor Benefit Plan (SBP). 2. The applicant states: * he was automatically enrolled into the SBP; he had elected "Decline" on the DD Form 2656 (Data for Payment of Retired Personnel) during the process of his retirement; he and his spouse do not want this coverage * his spouse, who is also a military member, was not present at the time that he declined the SBP coverage; the DD Form 2656 was sent to his spouse to accept or decline the SBP coverage * his spouse declined coverage; however, she did not return the DD Form 2656 to the retirement branch office prior to his retirement date which resulted in him being automatically being enrolled in the SBP * his spouse is retiring as well and has been occupied with several appointments in support of her own retirement process * as a result of automatic coverage, $175 is being deducted out of his retirement each month; he wants a full refund 3. The applicant provides the back page of a DD Form 2656, dated after his retirement, together with his marriage certificate. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 11 June 1993. He held military occupational specialty 91Z (Mechanic Maintenance Sergeant). 2. He served through multiple reenlistments in a variety of stateside or overseas assignments, including Kuwait, Germany, Iraq, and Afghanistan, and he attained the rank/grade of master sergeant (MSG)/E-8. 3. On 17 September 2014, Joint Base Myer–Henderson Hall, Arlington, VA, published orders announcing his retirement by reason of sufficient service for retirement, effective 31 August 2015. 4. On 24 June 2015, in the presence of a Retirement Services Officer (RSO), he completed a DD Form 2656. This form shows: * he was married and his date of marriage was 25 August 1998; he had one dependent child (born in November 1998) * he elected not to participate in the SBP * he indicated he understood he could terminate SBP with his spouse's concurrence within 1 year after the second anniversary of commencement of retired pay * he signed and the RSO signed this form on 24 June 2015 * the spouse did not sign this form although Section XII (SBP Spouse Concurrence) states spouse concurrence is required when the member is married and does not elect full spouse coverage, that the signature must not be before his signature, and that it must be notarized * he acknowledged if he failed to obtain his spouse's concurrence to an SBP election before his retirement, then he would be automatically enrolled in full SBP 5. He retired on 31 August 2015. He was placed on the Retired List in his retired rank/grade of MSG/E-8 on 1 September 2015. 6. He provides the back page of a DD Form 2656, with no election made. It is signed by him and a witness on 3 November 2015. 7. The Defense Finance and Accounting Service (DFAS) indicated by email that there was no spousal concurrence for the SBP election and as such, he was automatically enrolled for "spouse and children." REFERENCES: 1. 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. An election, once made, was irrevocable except in certain circumstances. This law also provides that every member having a spouse and/or child(ren), who retired/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list. 2. Title 10 U.S. Code (USC), section 1448, required notice to a spouse if a member elected not to participate in the SBP. The statute also provided for automatic enrollment for spouse coverage at the full base amount unless a member affirmatively declined to participate in the SBP prior to receiving retired pay. Title 10 USC, section 1448 was amended effective 1 March 1986 to require written concurrence by the spouse in a member's decision to decline the SBP or elect spouse coverage at less than the full base amount. 3. Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation. Retirees have a 1-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: The applicant contends his SBP coverage should be terminated and, in effect, paid premiums should be refunded. The SBP is a program that is governed by statute. a. When a member is married; makes an SBP election before retiring; and declines SBP coverage, elects children only SBP coverage, or does not elect full spouse coverage, the spouse must concur in writing on or after the date the member made the election but before the member's retirement date. b. Before his retirement, the applicant completed a DD Form 2656 on 24 June 2015. He elected to decline participation in SBP. He was counseled and understood that his spouse was required by statute to concur with this election. He was still married at the time. There is no evidence she did so after he made this election but prior to his retirement date. As a result, his SBP coverage on his retirement date (1 September 2015) defaulted by law to spouse coverage based on the full amount. c. After his retirement, specifically on 3 November 2015, he and a witness signed a form – with no election to participate or decline participation – and his spouse signed that form agreeing with an election that he did not make. This form is not a valid form for two reasons: first, there is no election made, and second, it was submitted outside the authorized statutory time frame to terminate coverage. d. Nevertheless, it is clear that the except for the administrative errors and slight delay in time before his spouse returned the concurrence statement, the applicant's intent is not to participate in the SBP. His spouse is a military retiree in her own right. It seems harsh to charge the applicant premiums for a program that neither he nor his spouse desire. Although there is no Government error, equitable relief may be appropriate in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017595 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017595 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2