BOARD DATE: 15 November 2017 DOCKET NUMBER: AR20160002573 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: 15 November 2017 DOCKET NUMBER: AR20160002573 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 amending his DD Form 2656 to reflect he elected not to participate in the SBP, his wife concurred with his election and her concurrence was witnessed in a timely manner, remitting his SBP debt, and refunding him any monies due 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. BOARD DATE: 15 November 2017 DOCKET NUMBER: AR20160002573 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 his Survivor Benefit Plan (SBP) coverage and reimbursement of all premiums previously paid. 2. The applicant states: a. He should have never been enrolled in the SBP. His initial attempt to opt out of the plan was denied because the date his wife signed the Spouse SBP Election Concurrence Statement was different from the date she had it notarized and he was not informed of this until after his retirement. b. He was told his only recourse was to opt out after 2 years. In January 2013, he contacted the Fort Sill, OK, retirement center for assistance because that is where his wife lives, while he lives in Houston. Mr. M____ W____, the director of the Fort Sill, OK, Retirement Services Office (RSO) at that time said he and his wife could go to his office together on 20 February 2013 when he was available to take time off to travel there and Mr. W____ would be able to get this done even though it was not in the 2 to 3-year termination window yet. c. When SBP premiums were still being deducted from his April 2013 retired pay, he contacted Mr. W____ again and he said it might not show up that he opted out until after the 3-year date. By July 2014, when SBP premiums were still being deducted from his retired pay, he contacted Mr. W____ again. Mr. W____ couldn't find his copy of the DD Form 2656-2 (Survivor Benefit Plan (SBP) Termination Request) or any record he had turned it in, but said he didn't have to worry, so he didn't worry. d. The next time he checked was when he was preparing his 2014 taxes in January 2015 and he saw the SBP premiums were still being deducted. By this time, Mr. W____ had retired and Ms. M____ T____ at that same office said she would handle it. It was discussed in that office that Mr. W____ may have planned on waiting for the 2-year mark to submit the paperwork, then just forgot to turn it in and by July 2014 it was too late. As it turned out, Ms. T____ was unable to fix it and emailed him back promptly advising him to contact the Army Review Boards Agency (ARBA), but the email went to his Army Knowledge Online email address that had already been shut down. It is now the 2015 tax season and his money is still being stolen. 3. The applicant provides: * Headquarters, Fort Steward and Hunter Army Airfield, Orders 119-0023, dated 29 April 2010 * DD Form 1172 (Application for Uniformed Services Identification Card – Defense Enrollment Eligibility Reporting System Enrollment), dated 24 January 2011 * DD Form 2656 (Data for Payment of Retired Personnel), dated 26 January 2011 * Spouse SBP Election Concurrence Statement, dated 25 February 2011 * Defense Finance and Accounting Service (DFAS) letter, dated 2 March 2011 * copy of Priority Mail envelope, dated 4 March 2011 * Fort Stewart, GA, RSO facsimile (fax) cover sheet, dated 26 April 2011 with accompanying Spouse SBP Election Concurrence Statement * Fort Stewart, GA, RSO fax cover sheet, dated 4 August 2011 * copy of Priority Mail envelope, dated 24 August 2011 * DFAS letter, dated 28 December 2011 * DD Form 2656-2, dated 20 February 2013 * Fort Sill, OK, RSO fax cover sheet, dated 28 July 2014 * DFAS letter, dated 29 July 2014 * electronic mail (email) correspondence with ARBA officials, dated 9 February 2016 and 3 March 2016 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. The applicant enlisted in the Regular Army on 14 March 1986. 3. Section IX (Survivor Benefit Plan (SBP) Election) of his DD Form 2656, dated 26 January 2011, shows he elected not to participate in the SBP. He signed the form in Section XI (Certification) on 26 January 2011 and Mr. R____ R____, Army SBP Counselor at Fort Stewart, GA, likewise signed the form on 26 January 2011. His wife did not sign the form in Section XII (SBP Spouse Concurrence). A continuation page lists his wife as D____ C____ and shows her address to have been in Lawton, OK. 4. A Spouse SBP Election Concurrence Statement, shows: a. The applicant's spouse, D____ C____, received information that explained the SBP election her husband made and the effects of that SBP election. b. She understood that retired pay stops on the day the retiree dies and that participation in SBP is the only way for a retiree to continue receipt of a portion of their pay for designated eligible beneficiaries. She understood she must elect to concur or nonconcur with her spouse's SBP election. She understood that if she nonconcurred, did not have her signature witnessed by a notary public, or failed to complete and return this statement by 31 March 2011, the effective date of her spouse's retirement, her spouse would receive automatic spouse SBP coverage based on full retired pay. She acknowledged she made this election of her own free will. c. She placed an "X" in the block acknowledging she concurred with her spouse's SBP election to decline SPB coverage and signed the form on 25 February 2011. On 8 March 2011, the form was witnessed and signed by a notary public. 5. The applicant provided what appears to be a photocopy of a Priority Mail envelope addressed from the Fort Stewart, GA, RSO to the DFAS U.S. Military Retirement Pay New Accounts Office. The date stamp on the envelope appears to be 4 March 2011. The contents of the envelope are not identifiable. 6. He retired effective 31 March 2011 and was placed on the Retired List effective 1 April 2011. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 25 years and 17 days of active duty service. 7. A Fort Stewart, GA, RSO fax cover sheet, dated 26 April 2011, shows a spouse concurrence statement for the applicant was faxed to DFAS on the date of the cover sheet. 8. A letter from DFAS to the applicant, which was presumably backdated or simply incorrectly annotated on the document as 2 March 2011 due to clerical error, states this letter was in reply to his spouse's SBP Election Concurrence Statement received by the Retired and Annuity Pay Center on 26 April 2011. The applicant was advised that DFAS could not correct his election to read "declined" as the date the document was notarized was after the signature date. Therefore, the election was not properly witnessed. 9. A Fort Stewart, GA, RSO fax cover sheet, dated 4 August 2011, shows a spouse concurrence statement for the applicant was faxed to DFAS on the date of the cover sheet. 10. He provided what appears to be a photocopy of a Priority Mail envelope addressed from the Fort Stewart, GA, RSO to the DFAS U.S. Military Retirement Pay New Accounts Office. The date stamp on the envelope is 24 August 2011. The contents of the envelope are not identifiable. 11. A letter from DFAS to the applicant, dated 28 December 2011, states the letter was in reply to his spouse's SBP Election Concurrence Statement received by the Retired and Annuity Pay Center on 26 April 2011. The applicant was advised that DFAS could not correct his election to read "declined" as the date the document was notarized was after the signature date. Therefore, the election was not properly witnessed. 12. A DD Form 2656-2, dated 20 February 2013, shows the applicant requested SBP termination and his wife concurred with his request. The applicant, his wife, and Mr. M____ W____, the Fort Sill, OK, Retirement Services Officer, all signed the document on 20 February 2013. 13. A Fort Sill, OK, RSO fax cover sheet, dated 28 July 2014, shows a DD Form 2656-2 pertaining to the applicant was faxed to DFAS on the date of the cover sheet, asking why the request was not processed. 14. A letter from DFAS to the applicant, dated 29 July 2014, states this letter referenced the enclosed SBP Termination Request. As stated in the instructions in the DD Form 2656-2, the applicant only had a 1-year window in which to withdraw from the SBP, starting with the 25th month through the 36th month after his first eligibility to receive retired pay. It advised him he was no longer eligible to withdraw from the SBP as he had been retired for 40 months. REFERENCES: 1. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. The election must be made prior to the effective date of retirement or else coverage automatically defaults to spouse coverage, if applicable. 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. 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 evidence of record shows the applicant submitted a DD Form 2656 on 26 January 2011 to the Fort Stewart, GA, RSO, wherein he elected to not participate in the SBP for his spouse. His spouse did not sign the DD Form 2656, presumably because she was not collocated with her husband at the time, as the continuation sheet shows her address to have been in Lawton, OK. 2. She did, however, sign a Spouse SBP Election Concurrence Statement on 25 February 2011, wherein she acknowledged her concurrence with her husband's declination of SBP coverage. This concurrence statement was witnessed by a notary public on 8 March 2011 and not on the date she signed it. 3. Despite this error in date of the notary witness' signature, the evidence reflects the applicant's clear election to not participate in the SBP and his spouse's clear concurrence with his election to decline SBP coverage, both of which were made prior to his retirement date of 31 March 2011. There is no evidence the Fort Stewart, GA, RSO or the Fort Sill, OK, RSO informed the applicant of the erroneous date the notary public signed the document. 4. While it is evident that DFAS officials informed the applicant of the erroneous notary witness date on his wife's concurrence statement, there is no evidence of record to suggest the applicant was informed of this error prior to his retirement date or that he was informed prior to his retirement date that this error would prevent him from declining SBP coverage in the period in which he could still make such a declination. 5. As the applicant clearly declined any and all forms of SBP coverage prior to his retirement and his spouse clearly concurred prior to his retirement, there is sufficient evidence to show an error or an injustice occurred at the time of his election in that the applicant was not informed of the error by RSO officials in a timely manner, thereby negating his ability to correct the error because his window for declination closed upon his retirement. Even his clear attempts to withdraw from SBP within the allotted 2 to 3-year window after his retirement, as evidenced by his SBP Termination Request signed and concurred with by his wife within that time frame, were thwarted by the RSO or not received by DFAS in a timely manner. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002573 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002573 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2