IN THE CASE OF: BOARD DATE: 25 August 2016 DOCKET NUMBER: AR20150012057 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: 25 August 2016 DOCKET NUMBER: AR20150012057 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: a. showing she declined to participate in the SBP and her spouse properly concurred with her declination to decline participation in the SBP prior to her date of retirement; and b. refunding all SBP premiums paid. __________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: 25 August 2016 DOCKET NUMBER: AR20150012057 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 her participation in the Survivor Benefit Plan (SBP). 2. The applicant states she received her Defense Finance and Accounting Service (DFAS) statement on 10 July 2015 and realized she had erroneously signed up for SBP. Her spouse had a stroke on 11 April 2015. During his hospital stay she attended the mandatory retirement briefing on 14 April 2015. She was emotionally unstable then and still is because of what lies ahead of them. She respectfully requests a review and correction of her record as she blindly signed the paperwork. 3. The applicant provides eight pages from her spouse's medical records and a notarized statement of her spouse's concurrence. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. On 26 August 1990, the applicant married her spouse Robert. 3. On 19 January 2003, the applicant was commissioned and entered active duty. 4. On 16 April 2015, the applicant completed a DD Form 2656 (Data for Payment of Retired Personnel) during her retirement processing. It shows she was married and elected to participate in the SBP for spouse-only coverage. However, her spouse's concurrence was not required because the applicant opted for full SBP coverage. 5. On 25 June 2015, the applicant was retired by reason of temporary disability, in the rank of major, following her completion of 12 years, 5 months, and 7 days of creditable active service. She was placed on the Temporary Disability Retired List (TDRL) on 26 June 2015. 6. The applicant provides extracts from her spouse's medical records that show he was hospitalized from 13 to 30 April 2015 and a notarized statement from her spouse, dated 10 July 2015, wherein he concurs with his wife's decision to terminate SBP coverage. REFERENCES: 1. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. 2. Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse's written concurrence for a retiring member's election that provides less than the maximum spouse coverage. 3. Department of Defense Financial Management Regulation, volume 7B, chapter 43, provides guidance on SBP elections. This chapter states, in pertinent part, that effective 1 March 1986, a married member is enrolled with spouse coverage based on full retired pay at the time of retirement unless that spouse has concurred in writing to another election requested by the member. When the spouse's concurrence is required, the signature indicating concurrence must be corroborated by one or more witnesses. 4. 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 the 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's request to disenroll from the SBP was carefully considered. 2. In this case, the evidence provided by the applicant shows that after having initially elected spouse-only coverage, her spouse concurred with her election to decline SBP coverage shortly after the effective date of her retirement. 3. Based on the applicant's compromised mental state at the time of her SBP election, it is reasonable to conclude she erroneously elected SBP coverage. Furthermore, her spouse concurred with her decision to decline SBP coverage. For these reasons, and as a matter of equity only, it would be appropriate to correct her records to show she declined SBP coverage prior to her retirement date. This decision is now irrevocable, meaning at no time in the future will she be authorized to elect to participate in the SBP. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012057 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012057 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2