BOARD DATE: 24 October 2017 DOCKET NUMBER: AR20160004370 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: 24 October 2017 DOCKET NUMBER: AR20160004370 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 * 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: 24 October 2017 DOCKET NUMBER: AR20160004370 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 disenrollment from the Survivor Benefit Plan (SBP). 2. The applicant states he was erroneously enrolled in the SBP. He declined coverage when out-processing from Fort Rucker. He was told his DD Form 2656 (Data for Payment of Retired Personnel) was lost or he never completed the form and that is why he was automatically enrolled into the SBP. He contacted the Defense Finance and Accounting Service (DFAS) after the first automatic collection of SBP and was instructed to submit for disenrollment through retirement services. He has since sent another DD Form 2656 to Mr. J_ S_, a retirement services officer (RSO) at Fort Sam Houston, and has remained in contact with Army RSOs. 3. The applicant provides: * DD Form 2656 * spouse SBP election concurrence statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Reserve commissioned officer in the Army on 11 December 2003. He held area of concentration (AOC) 18A (Special Forces Officer) and attained the rank of major (MAJ). 2. He and his spouse were married on 21 February 2014. The applicant has four children born in May 2000, November 2002, December 2006, and August 2009. 3. On 17 August 2012, a physical evaluation board (PEB) convened and found him unfit for duty. The PEB recommended a 100 percent total permanent disability and his disposition be “permanent disability retirement.” He concurred. 4. On 25 June 2014, Headquarters, U.S. Army Garrison, Fort Rucker, AL published orders announcing his retirement by reason of physical disability effective 26 August 2014. 5. He retired on 26 August 2014. He was placed on the Retired List in his retired rank/grade of MAJ on 27 August 2014. 6. On 24 September 2014, the applicant faxed a letter to DFAS stating that he retired on 27 August 2014, and noticed when he received his first retirement leave and earnings statement that money was deducted for SBP. He contacted DFAS to clarify because he had declined SBP. He was told by DFAS that it was set up automatically due to DFAS not receiving a DD Form 2656. He did not want SBP and declined while out-processing. He also included in the fax a DD Form 2656-8 (SBP Automatic Coverage Fact Sheet), dated 22 September 2014, signed by the applicant and his spouse as a witness. 7. The applicant provides a DD Form 2656, dated 25 August 2015, completed in the presence of an RSO. This form shows: * he was married and his date of marriage was 21 February 2014; he had four dependent children * 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 and the RSO signed this form on 25 August 2015 * the spouse signed this form in the presence of a notary on 2 September 2015 in Section XII (SBP Spouse Concurrence) concurring with her spouse’s declination of SBP and acknowledging spousal 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 8. He also provides spouse SBP election concurrence statement signed by his wife, dated 13 October 2015, that states: * she received information that explains the SBP election her spouse elected and the effects of the SBP election * retired pay stops on the day the retiree dies * she signed the statement of her own free will * she is in full concurrence with not electing SBP spouse coverage with full understanding of not receiving any additional survivor benefit annuity at the time of death of the retiree 9. He provides his DD Form 214 reflecting his retirement date effective as of 26 August 2014. 10. On 18 May 2017, the Case Management Division of the Army Review Boards Agency inquired with DFAS regarding a valid completed DD Form 2656 being on file for the applicant and DFAS replied stating a valid DD Form 2656 was never received. However, a beneficiary form was sent to the applicant. DFAS also provided the fax received from the applicant on 24 September 2014. 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 because he elected not to participate prior to his retirement date on 26 August 2014. 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 contends he completed a DD Form 2656 when he out-processed from Fort Rucker. He elected to decline participation in SBP. He was counseled and understood that his spouse was required by statute to concur with this election. There is no evidence that he submitted a completed DD Form 2656 prior to his retirement date. As a result, his SBP coverage on his retirement date (26 August 2014) defaulted by law to coverage based on the full amount of his retired pay. c. It appears following his retirement, he attempted to contact DFAS on 24 September 2014, by sending a letter attesting to his SBP termination selection and a DD Form 2656-8 (SBP Automatic Coverage Fact Sheet). His attempts failed because he submitted the wrong form and was not within one year after his second anniversary of commencement of retired pay. He did submit another DD Form 2656 on 2 September 2015; however, this form was invalid because it was not submitted during an authorized period. d. By law, since he retired on 26 August 2014, as a retiree he had a 1-year period beginning on the second anniversary of the date on which his retired pay started to withdraw from SBP. That would have been from 27 August 2016 through 26 August 2017. He attempted to stop further collections by submission of DD Form 2656 to his RSO on 25 August 2015. It is not clear whether his RSO submitted this document to DFAS. e. His correspondence with DFAS occurred before the authorized 1-year period and his application to this Board is dated 19 January 2016, which is within the statutory period to withdraw from SBP. He did apply to have his SBP premium collection stopped within the statutory period to withdraw, albeit by submitting DD Form 2656 as opposed to DD Form 2656-2. f. After his retirement, specifically on 25 August 2015, he and a witness signed DD Form 2656 electing not to participate in SBP and his spouse signed that form on 2 September 2015 thereby agreeing with the election. It appears his original DD Form 2656 was either lost or not submitted by the RSO prior to his retirement date. The RSO is obligated to ensure that the applicant is appropriately counseled and understands the benefits and ramifications of selecting or not selecting SBP and ensuring the timely submission of DD Form 2656 to DFAS on behalf of the applicant. g. The applicant's intent is not to participate in the SBP and his spouse concurs. The applicant is paying premiums for a program that neither he nor his spouse desire and apparently attempted to opt out of prior to the applicant’s retirement. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004370 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004370 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2