IN THE CASE OF: BOARD DATE: 4 February 2016 DOCKET NUMBER: AR20150004523 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 termination of his Survivor Benefit Plan (SBP) participation. 2. The applicant states: * he was improperly counseled on the complete details of participation in the program and he would not have elected to participate had he been given the proper counseling * he was surprised to learn that the SBP rate increases with retirement income increases and that withdrawal from the program can only occur in an exact window of opportunity between the 25th and 36th month following eligibility for retired pay * his cost for SBP is $56.45 per month and it presents a significant financial burden * he is unemployed and he has been forced to withdraw from school due to recent destabilization of his mental health condition * he is currently on a fixed income with an uncertain financial future and withdrawal from the program will grant relief from the financial strain 3. The applicant provides no additional evidence. CONSIDERATION OF EVIDENCE: 1. Prior to his retirement, the applicant completed a DD Form 2656 (Data for Payment of Retired Personnel) on 2 November 2011 and he elected spouse-only SBP coverage based on the full amount of his retired pay. Spouse concurrence was not required because he did not elect less than the maximum coverage. 2. Section XI (Certification) of his DD Form 2656 shows the form was witnessed by an official at Retirement Services, Fort Riley, KS, on 2 November 2011. 3. On 30 November 2011, his name was placed on the Retired List by reason of permanent disability with a 30-percent disability rating for mental health conditions. His disability rating was changed to 50 percent in 2013. 4. On 31 December 2014, the Defense Finance and Accounting Service (DFAS) referred him to the Army Board for Correction of Military Records and notified him that: a.  His request for SBP termination could not be processed. He only had a 1-year window to withdraw from SBP, starting with the 25th month through the 36th month after his eligibility to receive retired pay, as indicated under item 1 of the instructions on his DD Form 2656-2 (SBP Termination Request). b.  He had been retired for 37 months and he was no longer eligible to withdraw from the SBP. 5. DFAS records show his DD Form 2656-2, dated 1 December 2014, was received by DFAS on 2 December 2014. His DD Form 2656-2 also shows his spouse concurred with his request to terminate SBP coverage on 2 December 2014 and acknowledged this decision was irrevocable. Her signature was witnessed and notarized. 6. 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 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, is irrevocable except in certain circumstances. This law also provides that every member having a spouse and/or child(ren), who retires/transfers to the Retired List on or after that date, is automatically covered under the SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the Retired List. 7. In accordance with Title 10, U.S. Code, section 1448a, a participant in the SBP may elect to discontinue participation during the 25th through the 36th month after commencement of payment of retired pay. 8. Title 10, U.S. Code, section 1448, in effect at the time, 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, U.S. Code, 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. DISCUSSION AND CONCLUSIONS: 1. The evidence shows the applicant elected SBP coverage for his spouse prior to his disability retirement on 30 November 2011. 2. Although DFAS stated he had been retired for 37 months, his DD Form 2656-2 shows he signed the form on 1 December 2014, 1 day after the 36th-month cutoff date for withdrawal from the SBP. The form was notarized on 2 December 2014, indicating his spouse concurred with his election and signed the form on that date. DFAS records show his DD Form 2656-2 was received by that office on 2 December 2014. 3. Nevertheless, it is reasonable to presume the applicant had to research, identify, and locate the appropriate form (DD Form 2656), have it notarized, and submit it to DFAS in a timely manner while suffering from the mental health conditions responsible for his physical disability retirement. 4. As a matter of equity, the applicant's records should be corrected to show he elected not to participate in the SBP on 29 November 2014, his spouse timely concurred with this election, and officials at DFAS timely processed the request. BOARD VOTE: ___x____ ___x____ ____x___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 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 by: * showing the applicant completed a DD Form 2656-2 on 29 November 2014 electing not to participate in the SBP and that his spouse properly concurred with his decision on the same date * showing DFAS timely received and processed the applicant's DD Form 2656-2 declining the SBP with his spouse's concurrence * reimbursing all premiums already paid by the applicant 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. ABCMR Record of Proceedings (cont) AR20150004523 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004523 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1