BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150008068 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: 29 March 2016 DOCKET NUMBER: AR20150008068 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: a. showing the applicant declined SBP participation with her spouse's concurrence and that her request was received and processed by the appropriate office in a timely manner and b. refunding any SBP premiums already deducted from her retired pay due as a result of the above 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: 29 March 2016 DOCKET NUMBER: AR20150008068 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 her records to show she elected not to participate in the Survivor Benefit Plan (SBP). 2. The applicant states she was discharged by the Army Physical Disability Agency and was supposed to be out-processed at an active duty installation. The discharge process did not work correctly. The disability retirement board and her unit of assignment were separate commands and did not collaborate on her discharge. She was out-processed directly from a reserve unit and did not complete a DD Form 2656 (Data for Payment of Retired Personnel) nor did she receive a retirement briefing. As a result, she is being forced to have SBP payments deducted from her retirement pay. She did not request SBP and her spouse does not want it. Her spouse is retired and there is no requirement for SBP. 3. The applicant provides: * orders * letter from Defense Finance and Accounting Service (DFAS) * DD Form 2656 * Memorandum, subject: Declined Survivor Benefit Election for [Applicant] * self-authored statement CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as an officer in the Army National Guard on 7 April 1995. 2. A memorandum, dated 24 January 2014, notified the applicant that the U.S. Army Physical Disability Agency (USAPDA) found her to have a disability and she would be permanently retired with an 80 percent disability rating. 3. Orders D 024-26, issued by USAPDA, dated 24 January 2014, show she was placed on the Retired List on 28 February 2014, because of physical disability. 4. On 23 July 2014, the applicant completed a DD Form 2656 and she elected not to participate in the SBP. Under Section XII (SBP Spouse Concurrence) of the DD Form 2656, her spouse signed the form on 23 July 2014, indicating that he concurred with the SBP decision made by the applicant. 5. In a memorandum, subject: Declined Survivor Benefit Election for [Applicant], issued by Headquarters, 518th Sustainment Brigade, Knightdale, NC, dated 12 September 2014, the Support Operations Officer stated: a. The applicant was medically retired from the U.S. Army Reserve (USAR) on 28 February 2014 and did receive proper counseling on the retirement process. b. Medical retirement involved multiple agencies and she was released from the USAR from their headquarters; however, it was later determined that she should have been placed on orders and out-processed on active duty, which would have afforded her the opportunity to clear finance and complete all personnel actions at an active duty installation. c. She did not elect spousal coverage using a DD Form 2656 at the time of her retirement because she was not counseled on the requirement to do so. Her retirement pay started over 4 months late. DFAS initiated retirement pay without a DD Form 2656 on file and spousal deductions were initiated by default. d. Her spouse is also retired Army and no survivor benefit election was warranted or required. Her DD Form 2656 was completed post-retirement and is currently on file with DFAS. e. Their headquarters formally requested that administrative records be adjusted to reflect that the applicant declined SBP and that SBP payments be terminated. 6. A letter from DFAS, dated 30 December 2014, declined her request to discontinue participation in the SBP because she did not make a valid election prior to her retirement date. REFERENCES: 1. Public Law 92-425, the SBP, enacted on 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. Elections are made by category, not by name. An election to decline to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse (or child only coverage, if applicable) coverage. 2. Public Law 105-85, enacted on 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 placed on the Retired List on 28 February 2014 because of physical disability. 2. The evidence shows she did not elect to decline to participate in the SBP prior to the effective date of her retirement and therefore, she was automatically enrolled in the SBP with full spouse coverage. 3. She contends that she did not receive a retirement briefing and this contention is corroborated by a Support Operations Officer with Headquarters, 518th Sustainment Brigade. 4. The evidence shows there were less than 35 days from the date she was notified of her disability retirement to the date she was actually retired. Taking into consideration her notification date (24 January 2014) and her subsequent retirement date (28 February 2014), it is reasonable to believe that this short period interfered with her and her spouse's ability to decline and sign the DD Form 2656 prior to her retirement date. For these reasons and the fact that her spouse concurred with a declination of the SBP, and as a matter of equity, the applicant's record should be corrected to show she elected not to participate in the SBP, her spouse timely concurred with this election, and officials at DFAS timely processed the declination of SBP coverage prior to her date of 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) AR20150008068 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008068 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2