IN THE CASE OF: BOARD DATE: 21 July 2016 DOCKET NUMBER: AR20150011894 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 IN THE CASE OF: BOARD DATE: 21 July 2016 DOCKET NUMBER: AR20150011894 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 the applicant submitted a DD Form 2656 on 10 February 2015 and elected "children only" SBP coverage, based on the full amount and his spouse concurred with his election prior to his retirement * showing his request was timely received and processed by the appropriate DFAS office * adjusting the individual's pay/record and providing him any overpayment of 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. IN THE CASE OF: BOARD DATE: 21 July 2016 DOCKET NUMBER: AR20150011894 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 his records be corrected to show he elected children-only Survivor Benefit Plan (SBP) coverage instead of spouse coverage. 2. The applicant states his wife is terminally ill with cancer. When he was going through separation outprocessing, the Retirement Services Officer (RSO) mailed out a form to his spouse to sign and have notarized. She signed it, had it notarized, and mailed it back. The retirement office at Joint Base Richardson has the green slip proving she did get it. He called to check the status but he was told the form did not make it to them. His wife mailed it off months before but when he spoke with the RSO, he was told he could not get a new letter and that he needs to petition this Board. 3. The applicant does not provide any additional evidence. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 14 July 2000 and held military occupational specialty 91B (Wheeled Vehicle Mechanic). He and Alica were married on 18 February 2005. 2. He served through multiple extensions or reenlistments, in a variety of stateside and overseas assignments including Iraq and Afghanistan, and attained the rank/grade of sergeant (SGT)/E-5. 3. On 4 December 2014, a physical evaluation board rated his unfitting medical conditions at a combined rating of 60 percent and recommended his permanent retirement due to disability. 4. On 22 January 2015, the Installation Management Command, Joint Base Elmendorf Richardson, AK, published Orders 22-173 ordering his retirement effective 5 April 2015. 5. On 10 February 2015, he completed a DD Form 2656 (Data for Payment of Retired Personnel). He indicated he was married to Alica and they had three minor children. He elected coverage for children only based on the full amount. He and the RSO authenticated this form with their signatures. 6. Section XII (SBP Spouse Concurrence) of this DD Form 2656 states (spouse concurrence) is required when member is married and elects children only coverage, does not elect full spouse coverage, or declines coverage. The date of the spouse's signature must not be before the date of the member's signature and it must be notarized. 7. On 11 February 2015, by certified mail, the RSO sent a letter to the applicant's spouse, residing in Austin, TX, informing her that he elected children only SBP coverage and that her concurrence was required by law. The letter explained the law, the monthly premiums, and the amount of the annuity. 8. The applicant retired on 5 April 2015 and placed on the retired list in his retired rank/grade of SGT/E-5. He was credited with over 14 years and 8 months of faithful honorable service. 9. There is no evidence the spouse signed the concurrence letter or had it notarized or mailed it to the RSO. The RSO made an entry that reads, "spouse did not return letter" and submitted the election to the Defense Finance and Accounting Office (DFAS). 10. In December 2015, DFAS sent him a SBP Premium Bill for the amount of $725.43 (plus interest and fees) consisting of the monthly SBP premium of $119.54. 11. On 18 December 2015, he wrote to DFAS after having been billed SBP premiums, effective April 2015, at the spouse rate. He stated that he had declined the SBP. His wife had signed the form and returned it. He was with her when she dropped the letter at the post office. He stated that he could not pay for something he knew he could not afford. 12. On 13 January 2016, in response to the applicant's letter, a DFAS official corresponded back with him and informed him that DFAS could not process his SBP request because his original election, received on 29 April 2015, was invalid. His spouse signed it prior to him and therefore his current election of spouse and child remains in effect. 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. Since its creation, it has been subjected to a number of substantial legislative changes. 2. Title 10, United States Code (USC), section 1448 states the program established by this subchapter shall be known as the SBP. Members eligible to participate in the Plan are persons entitled to retired pay and persons who would be eligible for reserve-component retired pay but for the fact that they are under 60 years of age. a. Section 1448, sub-paragraph (a)(3)(A), Spousal consent for certain elections respecting standard annuity. A married person who is eligible to provide a standard annuity may not without the concurrence of the person’s spouse elect not to participate in the Plan; to provide an annuity for the person’s spouse at less than the maximum level; or to provide an annuity for a dependent child but not for the person’s spouse. b. Section 1448, sub-paragraph (a)(3)(C), Exception when spouse unavailable. A person may make an election described in subparagraph (A) or (B) without the concurrence of the person’s spouse if the person establishes to the satisfaction of the Secretary concerned that the spouse’s whereabouts cannot be determined; or that, due to exceptional circumstances, requiring the person to seek the spouse’s consent would otherwise be inappropriate. c. Section 1448, sub-paragraph (a)(4)(A), Irrevocability of elections, Standard annuity. An election under paragraph (2)(A) is irrevocable if not revoked before the date on which the person first becomes entitled to retired pay. d. Section 1448a, Authority. A participant in the Plan may, subject to the provisions of this section, elect to discontinue participation in the Plan at any time during the one-year period beginning on the second anniversary of the date on which payment of retired pay to the participant commences. e. Section 1448a(b) Concurrence of Spouse. (1) A married participant may not (except as provided in paragraph (2)) make an election under subsection (a) without the concurrence of the participant’s spouse; (2) Exceptions, a participant may make such an election without the concurrence of the participant’s spouse by establishing to the satisfaction of the Secretary concerned that one of the conditions specified in section 1448(a)(3)(C) of this title exists; and (3) The concurrence of a spouse under paragraph (1) shall be made in such written form and shall contain such information as may be required under regulations prescribed by the Secretary of Defense. DISCUSSION AND CONCLUSIONS: 1. Prior to his April 2015 disability retirement, the applicant made an SBP election on 10 February 2015. He indicated he was married to Alica and they had three minor children. He elected coverage for children only based on the full amount. He and the RSO authenticated this form with their signatures. 2. There is no evidence in the record or provided by the applicant, other than his statement, that his spouse signed the concurrence letter or had it notarized or mailed it to the RSO. When the applicant’s retirement date commenced, the RSO made an entry that reads "spouse did not return letter" and submitted the election to DFAS. 3. Because there was no evidence the spouse concurred with his election, his coverage defaulted to spouse coverage as required by law. By the time his retired pay account was established, he owed premiums for multiple months. (It appears he could be receiving financial benefits that are greater than his monthly military retired pay or an offset causing a monthly SBP debt 4. A spouse concurrence is required when a service member is married and elects children only coverage, does not elect full spouse coverage, or declines coverage. As required, the RSO mailed the spouse a concurrence letter informing her that he elected children only SBP coverage and that her concurrence was required by law. The letter explained the law, the monthly premiums, and the amount of the annuity. 5. The statement provided by the applicant and his spouse shows she did receive the notification letter, had it notarized, and placed it into a mailbox. This is confirmed by the January 2016 letter from DFAS which stated his spouse had signed her notification letter prior to his own signature date although no documentary evidence was received at the RSO. 6. The statute requiring a spousal concurrence protects the spouse's interest. It would be contrary to the purpose of the statute that it instead penalized a terminally ill spouse. There is no reason to disbelieve the applicant's statement. Accepting his statement, the evidence would support a recommendation to correct his record to show he elected SBP for children only coverage and then adjusting his retired pay account. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011894 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011894 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2