IN THE CASE OF: BOARD DATE: 10 October 2017 DOCKET NUMBER: AR20160000520 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x ____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 10 October 2017 DOCKET NUMBER: AR20160000520 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________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: 10 October 2017 DOCKET NUMBER: AR20160000520 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 his military records to show he elected not to participate in the Survivor Benefit Plan (SBP). 2. The applicant states: a. He was notified of his medical retirement on 1 September 2015; however, his command was never told of his retirement date, which was scheduled for 14 September 2015. b. His retirement orders were at the central S1 Office on 6 August 2015 for almost a whole month, but were lost in clearing. c. On 11 September 2015, he had surgery, but he was required to complete his processing by 26 September 2015 due to his leave and transfer to retirement. There was a communication problem with his human resources technician due to her handicap (she is deaf), and he believes she was rushed to complete his paperwork to meet his retirement date. d. During his mandatory briefing for retirement, it was unclear to him that the SBP program was not the Servicemembers Group Life Insurance (SGLI) or the Veterans Group Life Insurance (VGLI); therefore, he signed the SBP form voluntarily, not fully understanding the program. In his opinion and experience, it was unfair and unjust because he believed he did not have the choice to decline the election. He states it would have made no sense for him to have made this election had he fully understood the program, since his spouse is on active duty. He would now like to cancel his SBP election. 3. The applicant provides: * Orders 245-0158, dated 2 September 2015 * DD Form 2656 (Data For Payment of Retired Personnel), dated 2 September 2015 * Verification of Soldier Counseling, dated 2 October [2015] * Enlisted Record Brief * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 214C (DD Form 214 Continuation Sheet) * Retired Account Statement (RAS), dated 1 December 2015 CONSIDERATION OF EVIDENCE: 1. On 18 May 1999, the applicant enlisted in the Regular Army, and he reenlisted on multiple occasions. The highest rank/grade he attained while serving on active duty was as a sergeant first class (SFC)/E-7. 2. On 5 November 2007, the applicant married his spouse in the city of San Antonio, Bexar County, TX. 3. Orders 245-0158, dated 2 September 2015, show the applicant was issued orders releasing him from assignment and duty because of his physical disability, which was incurred while entitled to basic pay and under conditions that permitted his retirement. He was placed on the temporary disability retirement list (TDRL) with a disability rating of 50 percent, in the rank/grade of SFC/E-7, effective 29 October 2015. 4. The evidence of record shows he received a Verification of Soldier Counseling on 2 October [2015], which states, "I, SFC [Applicant] have been counseled on the Survivor Benefit Plan (SBP) and have received information that explains the SBP options available to me, and the effects [of] participating or not participating in each…". 5. His record contains a DD Form 2656, dated 2 September 2015, which shows that, after being counseled about the SBP, he voluntarily elected coverage for "spouse and child(ren)" based upon his full gross retired pay, in the presence of an SBP counselor who signed as the witnessing official. 6. His DD Form 214 shows he was placed on the TDRL on 29 October 2015. He completed 16 years, 5 months, and 12 days of net active service. 7. The applicant provides his RAS, which shows he is currently paying SBP premiums for spouse and child(ren) coverage in the amount of $132.02 per month. 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. This chapter also states, in pertinent part, that the Secretary of the Military Department concerned (or designee) may correct any election or any change or revocation of an election when the Secretary considers it necessary to correct an administrative error. 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 Verification of Soldier Counseling shows the applicant was properly counseled on the SBP options available to him and the effects of participating or not participation in each option. The document was signed by the applicant, witnessed by a technician, and signed by the Retirement Service Officer, who was also the SBP Counselor, prior to his retirement. 2. There is no evidence that shows the applicant was forced to elect SBP coverage or that he was improperly counseled. He received the appropriate information regarding the SBP program and voluntarily elected to participate in the SBP for "spouse and child(ren)" coverage, based on the full amount of his retired pay, in the presence of the SBP Counselor. 3. The decision to enroll or not enroll in the SBP is a personal decision made by a Soldier. The cost of SBP coverage is determined by several factors, most importantly the type of coverage elected. Furthermore, spousal concurrence is required for a participating member to elect not to participate in SBP. There are no documents in the applicant’s records, nor does he provide any to show that his spouse concurs with his current request to decline SBP coverage, which is required by law. 4. The law governing the SBP states all elections are irrevocable unless otherwise provided by law. The law allows a participating member to elect to discontinue participation by submitting a DD Form 2656-2 during the period that is more than 2 years but less than 3 years after the first date of entitlement to receive retired pay. The request must be submitted no earlier than the 1st day of the 25th month and no later than the last day of the 36th month from the date of entitlement to retired pay with spousal concurrence. Therefore, since the applicant retired on 29 October 2015, he still has the option to terminate SBP coverage with spousal concurrence; however, he will not receive a refund of any premiums, which have already been paid, unless the Board chooses to grant his request. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000520 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000520 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2