BOARD DATE: 10 October 2017 DOCKET NUMBER: AR20160002621 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: 10 October 2017 DOCKET NUMBER: AR20160002621 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 the applicant completed a DD Form 2656 (Data for Payment of Retired Personnel) electing not to participate in the SBP and that her spouse concurred with her decision on 13 June 2013 and that the form was received and accepted by the Defense Finance and Accounting Service in a timely manner; and b. as a result of this correction, reimbursing her any premiums already 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: 10 October 2017 DOCKET NUMBER: AR20160002621 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, in effect, correction of her record to show she elected not to participate in the Survivor Benefit Plan (SBP) and reimbursement of all premiums already paid into the program. 2. The applicant states she was not married and had no dependent children at the time of her retirement in March 2005. She discovered her mailing address was incorrectly listed in the military system. This and a recent pregnancy added in delaying her request for relief. 3. The applicant provides: * Marriage License * Premarital Education Certificate * 2 State of Georgia Certificates of Live Birth * DD Form 2656 (Data for Payment of Retired Personnel) * a self-authored statement * Application for Marriage License * 3 letters * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 215 (Correction to DD Form 214) * Orders 066-0904 * SBP/RSFPP Premium Bill * Spouse's statement * Retiree Account Statement 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. Having 1 year, 5 months and 7 days prior active service, the applicant entered active duty as a member of the U.S. Army Reserve (USAR) on 3 January 2003. 3. Her DD Form 214 shows on 18 March 2005, she was honorably discharged by reason of disability with severance pay ($17,642.40). This form also shows: a. She performed service in Kuwait and Iraq from 3 January to 16 August 2003 in support of Operation Enduring and Iraqi Freedom. b. She served under the USAR component medical holdover medical retention processing program from 8 June 2003 to 19 March 2005. 4. On 16 December 2010, the applicant gave birth to a son. 5. On 23 September 2011, the applicant married Z_____ K____ J______. 6. On 19 November 2012, the Deputy Assistant Secretary of the Army (Review Boards) approved the recommendation of the Department of Defense Physical Disability Board of Review to recharacterize the applicant's separation as a permanent disability retirement with a combined disability rating of 50% effective the date of the applicant's original medical separation for disability with severance pay (effective 18 March 2005). 7. On 17 April 2013, her DD Form 214 was corrected by DD Form 215 to indicate she was retired due to permanent disability. 8. The applicant provides a DD Form 2656, dated 13 June 2013. This form shows she elected not to participate in the SBP. She also claimed she was unmarried and had no dependent children. 9. On 16 October 2015, the applicant gave birth to a son. 10. The applicant's Retiree Account Statement, dated 30 December 2016 (effective 3 December 2016), shows an SBP deduction for spouse coverage. Additionally, the SBP coverage block of the statement shows she has spouse-only coverage. 11. The applicant provides a self-authored statement from her spouse, Z_____ K____ J______, who states he was not married to the applicant at the time of her retirement in March 2005 and that he does not want spousal benefits (SBP). 12. In April 2017, a staff member contacted a member of the Defense Finance and Accounting Service (DFAS) who stated DFAS never received a DD Form 2656 from the applicant. The applicant's account shows that SBP coverage is in an automatic coverage status. 13. The applicant and her spouse provided a notarized statement, dated 9 August 2017, signed by her spouse and a notary, stating that they do not wish to participate in the SPB, as they were not married at the time her retirement was effective. 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 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 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 Secretary concerned receives the election. 4. The law governing the SBP stipulates that members who fail to make an SBP during retirement processing are automatically enrolled in the program. It further 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, if applicable. DISCUSSION: 1. The applicant contends that her records should be corrected to show she elected not to participate in the SBP. 2. By law, members failing to make an election prior to retirement are automatically enrolled in the SBP. It further states all elections are irrevocable unless allowed under some other provision of the law. The law allows termination with spousal concurrence only during the period that is more than 2 years but less than 3 years after the first date of entitlement to receive retired pay. 3. The evidence of record and the independent evidence provided by the applicant shows that the applicant married Z_____ K____ J______ on 23 September 2011. The Deputy Assistant Secretary of the Army (Review Boards) approved her request for permanent physical disability retirement on 19 November 2012 with an effective date of 18 March 2005. 4. The applicant completed an SBP election to decline coverage on 13 June 2013; however, she claimed she was single with no dependent children. It appears she answered these questions based on her marital status on 18 March 2005 instead of 19 November 2012. Regardless, DFAS stated they never received a DD Form 2656 from the applicant. Therefore, the applicant's account currently shows that SBP coverage is in an automatic coverage status. 5. It appears the applicant attempted to rectify the issue within the time required after her retirement for permanent physical disability was approved on 19 November 2012. Her spouse concurs with her 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) AR20160002621 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002621 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2