BOARD DATE: 21 September 2017 DOCKET NUMBER: AR20160001400 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: 21 September 2017 DOCKET NUMBER: AR20160001400 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 he and his spouse elected not to participate in the Survivor Benefit Plan (SBP), and he and his spouse properly completed a DD Form 2656 (Data for Payment of Retired Personnel) prior to retirement, and b. refunding to him 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. BOARD DATE: 21 September 2017 DOCKET NUMBER: AR20160001400 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 records to show he elected not to participate in the Reserve Component Survivor Benefit Plan (RCSBP), and reimbursement of premiums paid. 2. The applicant states the SBP was automatically started without written or expressed consent on his part. a. The SBP premiums automatically started being charged on 20 November 2013, when he was being medically boarded out of the service. There was a major problem with his paperwork being lost, so much so that he finally had to have a congressional inquiry into the proceedings. b. When his paperwork was finally completed, he was led to believe all of his documents had been taken care of. He elected to receive Department of Veterans' Affairs (VA) disability pay, because it was more than military retirement pay. Apparently, he was not given a DD Form 2656-2 (SBP Termination Request) to complete. c. He does not need the SBP coverage, due to his age, and because he has a substantial life insurance policy. He was unaware he was being charged for the SBP and he never paid the premiums. 3. The applicant provides the following documents: * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), dated 18 October 2013 * an automated document titled (RCSBP Information), dated 1 December 2015 * an automated document titled “SBP – RCSBP Election Change-Change to Existing Election,” dated 6 January 2016 * DA Form 5016 (Chronological Statement of Retirement Points), dated 25 October 2016 * a document titled "SBP Paid-up Full Month Calculator," dated 12 December 2016 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 14 September 1988. He completed his initial entry training and was awarded military occupational specialty 88M (Motor Transport Operator). He completed various periods of honorable active service and U.S. Army Reserve (USAR) service. As a USAR Soldier, he entered into the Integrated Disability Evaluation System at his place of residence. 2. A DA Form 199 shows a PEB) convened on 6 September 2013 and determined the applicant was unfit for further service. The PEB recommended a combined disability rating of 90 percent with a disposition of “permanent disability retirement.” 3. Orders D 289-19, issued by U.S. Army Physical Disability Agency on 16 October 2013, show the applicant was placed on the retirement list, on 20 November 2013, due to “permanent physical disability,” in the rank/grade of staff sergeant/E-6. 4. DFAS confirmed the applicant did not fill out a DD Form 2656 prior to retirement, so he was automatically enrolled in the SBP. 5. A DD Form 2656, dated 1 July 2014, shows the applicant placed an "X" in the appropriate block electing not to participate in the SBP. The applicant's spouse concurred with his SBP election and the form was notarized on 8 July 2014. 6. A DD Form 2656-2 shows the applicant requested to terminate SBP coverage, his spouse concurred, and the form was notarized on 11 December 2015. 7. The applicant provides: a. SBP information sheets, which show he was automatically enrolled in SBP, for spouse coverage, on 20 November 2013 (his retirement date). b. SBP-RCSBP Election Change, dated 6 January 2016, shows he discontinued his SBP coverage, effective 31 January 2016. c. SBP Paid-up Full Month Calculator, dated 12 December 2016, which shows he paid SBP spouse coverage premiums from 20 November 2013 through 6 January 2016 (26 months). 8. The applicant's record is void of evidence that shows he was provided an opportunity to properly out-process the military before his retirement date. 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. In this case, the evidence provided by the applicant shows after having been automatically enrolled into SBP upon his retirement on 20 November 2013, his spouse concurred with his election to decline SBP coverage on 8 July 2014. However, it appears the request was not processed since the request was made before the second anniversary of the applicant’s retirement date. 2. On 11 December 2015, again the applicant requested to terminate SBP coverage. That request met the appropriate timeframe established by Public Law 105-85. Therefore, his SBP premiums ended effective 6 January 2016. DFAS confirmed he is not authorized reimbursement of premiums paid before the disenrollment date because he was married at the time of retirement. 3. As a matter of equity, since the applicant out-processed unconventionally from his place of residence, the Board may recommend correction of his record to show he declined SBP coverage with his wife's concurrence before he retired. //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) AR20160001400 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2