IN THE CASE OF: BOARD DATE: 31 August 2020 DOCKET NUMBER: AR20190015456 APPLICANT REQUESTS: correction of his records to reflect declined election of Survivor Benefit Plan (SBP) enrollment. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Order# 136-0022 dated 16 May 2018 * DD Form 2656 (Data for Payment of Retired Personnel) dated 16 October 2018 FACTS: 1. The applicant states he requests to have his SBP election corrected and updated with Defense Finance Accounting Services (DFAS) in order to stop the garnishment from his Combat Related Special Compensation (CRSC) monthly payment from his retirement. He believes the retirement services office lost his original DD Form 2656 wherein he and his wife declined to participate in the SBP. He contests that this form was never processed resulting in him receiving bills from DFAS. He contacted the retirement services office and they advised him that he was automatically enrolled because they failed to receive his DD Form 2656. As a result, he submitted another DD Form 2656 in October of 2018 and was advised that the error would be corrected. However upon review of his CRSC pay, he noted that it was being reduced due to the SBP payments being deducted. 2. A review of the applicant’s available service records reflects the following: a. On 22 November 2005 he enlisted in the Regular Army. b. On 2 February 2009 (Order# 033-0002) he was reassigned to the United States Army Transition Point pending separation. c. On 17 April 2009 he was released from active duty and transferred into the United States Army Reserve. d. On 1 August 2012 he again enlisted in the Regular Army. e. On 18 November 2017 he was legally married. f. On 27 April 2018 a Physical Evaluation Board (PEB) was conducted finding the applicant physically unfit for retention with a disability rating of 70% with a recommendation that he be placed on the Temporary Disability Retired List (TDRL) and a re-examination during January of 2019. g. On 16 May 2018 (Order# 136-0022) he was reassigned to the United States Army Transition Point pending separation. h. On 3 August 2018 he was honorably discharged (retired) from the Army and placed on the TDRL under the provisions of Army Regulation (AR) 635-40 Chapter 4 (Temporary Disability). i. On 16 October 2018 he completed his DD Form 2656 indicating that he was married with dependent children. This document was endorsed by his spouse indicating her concurrence with his election. Item 34 (SBP Beneficiary Categories) contains a highlighted election of item d. indicating “coverage for the person named within block 37” (the form does not contain a defined block 37); option g. (election to not participate in SBP) is not indicated. Item 35 (SBP Level of Coverage) is void of an election. 3. The applicant provides the following: a. Order# 136-0022 dated 16 May 2018 – see 2d. above. b. DD Form 2656 (Data for Payment of Retired Personnel) dated 16 October 2018 – see 2f. above. 4. See applicable regulatory guidance below under REFERENCES. BOARD DISCUSSION: 1. After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered, however, Public Law specifies that military members having a spouse and/or child(ren), who retire/transfer to the retired list, are automatically covered under SBP at the maximum rate unless they elected otherwise before retirement or transfer to the retired list. There is insufficient evidence that the applicant ever submitted an SBP request before retirement. 2, Public Law also requires spousal agreement for withdrawal from SBP. Although the applicant provided a notarized spousal concurrence of record (which per the form is only to be completed when a married member elects child only SBP coverage, does not elect full spouse SBP coverage, or declines SBP coverage), the applicant did not actually make an SBP election on the DD Form 2656. Because of this omission, it is unclear whether the spouse has knowingly and voluntarily waived her right to the SBP annuity. The Board carefully considered this situation because it is the spouse’s – not the applicant’s – future annuity that would be terminated by favorable ABCMR action. 3. The applicant is advised that Public Law also established a one-year period for Retirees to withdraw from SBP, beginning on the second anniversary of the date on which their retired pay started. The applicant still has the option to terminate SBP coverage during the one-year period following the second anniversary of the receipt of retired pay and he is currently in that time window. However, termination at the two- year anniversary would not result in a refund of premiums owed prior to the termination of coverage. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. REFERENCES: 1. Title 10 USC 1448 states that a person who is eligible to participate in the plan under paragraph and who is married or has a dependent child when he becomes entitled to retired pay, unless he elects with his spouse's concurrence, if required, not to participate in the plan before the first day for which he is eligible for that pay. By law, married Soldiers who fail to provide written spouse concurrence or an approved waiver of same before date of retirement will be enrolled in full spouse SBP or, if any type of child/children coverage is elected, full spouse and child/children SBP. Title 10, USC, section 1448(a)(4) states that SBP elections are irrevocable if not revoked before the date on which the member first becomes entitled to retired pay. 2. Army Regulation (AR) 600-8-7 (Retirement Services Program) states that all Active Army Soldiers will receive the DA pre-retirement briefing, including a SBP briefing, at least 12 months before their retirement dates or for medical retirements at the start of the medical retirement process. In cases where a Soldier requests to retire in less than 12 months, the Soldier will attend the next group preretirement brief or receive an individual pre-retirement brief from a Retirement Services Officer. Married Soldiers may not decline, without the written, notarized concurrence of their spouses, to participate in SBP, to provide an annuity for the Soldier’s spouse at less than the maximum level, or to provide an annuity for a dependent child but not for their spouses. By law, married Soldiers who fail to provide written spouse concurrence or an approved waiver of same before date of retirement will be enrolled in full spouse SBP or, if any type of child/children coverage is elected, full spouse and child/children SBP. 3 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 for disenrollment. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190015456 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1