BOARD DATE: 9 January 2018 DOCKET NUMBER: AR20150018341 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: 9 January 2018 DOCKET NUMBER: AR20150018341 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 elected, in a timely manner, not to participate in the Survivor Benefit Plan * her spouse concurred with this election on 8 January 2014 * her spouse’s signature was witnessed and notarized on 8 January 2014 * reimbursing her any Survivor Benefit Plan 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. BOARD DATE: 9 January 2018 DOCKET NUMBER: AR20150018341 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 her record be corrected to show she declined to participate in the Survivor Benefit Plan (SBP) with spousal concurrence. 2. The applicant states she elected not to participate in the SBP. The Defense Finance and Accounting Service (DFAS) later informed her that she had been automatically enrolled in the SBP because her DD Form 2656 (Data for Payment of Retired Personnel) was dated after the date of her retirement. She was not made aware of this until months later. Her husband agrees and has signed the form. 3. The applicant provides a copy of the DD Form 2656, dated 21 January 2014. CONSIDERATION OF EVIDENCE: 1. DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) shows a PEB convened on 22 November 2013, found the applicant was physically unfit, and recommended a rating of 100 percent and that her disposition be permanent disability retirement. 2. The applicant married on 7 January 2014. 3. Then a sergeant in the Michigan Army National Guard (MIARNG), she was placed on the retired list effective 10 January 2014 by U.S. Army Physical Disability Agency Orders D 340-17, dated 6 December 2013. The address shown on these orders was the applicant's National Guard unit's address in Lansing, Michigan. 4. She was discharged from the MIARNG due to permanent disability effective 9 January 2014. The National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) indicates that it was mailed to her last known address 1106 330th Street South, Roy, Washington. 5. The only available DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant served on active duty as a member of the ARNG from 23 January 2008 through 28 July 2011. There are no available subsequent orders for active duty for treatment or medical evaluation. 6. The DD Form 2656 that the applicant submitted in support of her request, shows in: a. Section I (Pay Identification), block 6a-c, an address in Roy, Washington. b. Section VIII (Dependency Information), block 23 and 24, she was married in Graham, Washington, on 7 January 2014. c. Section IX (Survivor Benefit Plan (SBP) Election), block 26g, she chose "I elect not to participate in SBP." d. Section XI (Certification), block 30, she certified "...if I exercise my option to terminate the SBP, further participation is barred." The applicant's signature appears in block 30a and block 31b (Date Signed) indicates 21 January 2014. e. Section XI, block 31a, the witness signed on 21 January 2014, block 31d (Unit or Organization) shows Retirement Services Office, and block 31e shows Joint Base Lewis McCord; f. Section XII (SBP Spouse Concurrence), states “Required when member is married and elects child(ren) only coverage, does not elect full spouse coverage or declines coverage. The date of the spouse's signature in item 32b must not be before the date of the member's signature in item 30b, above. The spouse's signature must be notarized." g. Section XII, block 32, the statement “I hereby concur with the Survivor Benefit Plan election made by my spouse. I have received information that explains the options available and the effects of those options. I know that retired pay stops on the day the retiree dies. I have signed this statement of my own free will." – block 32a shows the spouse's signature and block 32b shows the date as 21 January 2014; h. Section XII, block 33, the spouse's signature was witnessed and notarized on 21 January 2014. 7. Before this case was forwarded to the Army Board for Correction of Military Records the Army Review Board Agency's Case Management Division requested the applicant provide a notarized statement to the effect that her spouse concurred with the request and understood that the decision was irrevocable. 8. In response, the applicant submitted another DD Form 2656 declining SBP coverage. It was signed and witnessed on 25 July 2015. Her spouse concurred. The spouse's 25 July 2015 signature was witnessed and notarized on 25 July 2015. REFERENCES: 1. Public Law 92-425, enacted 21 September 1972, repealed the Retired Serviceman’s Family Protection Plan and 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. 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. DISCUSSION: 1. The applicant’s husband concurred with her decision to decline SBP both at the time she originally completed the DD Form 2656 and subsequent to her application to this Board. 2. Considering that the applicant's retirement orders were mailed to the MIARNG, that they mailed her 9 January 2014 NGB Form 22 to her Washington address, and that her marriage occurred on 7 January 2014, completion of the DD Form 2656 on 21 January 2014 was not due to any negligence on the part of the applicant. 3. As a matter of equity, since the applicant out-processed unconventionally from her place of residence, the evidence would support a recommendation to correct her record to show she declined SBP coverage before she retired with her husband’s concurrence. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018341 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018341 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2