BOARD DATE: 11 January 2018 DOCKET NUMBER: AR20160005175 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: 11 January 2018 DOCKET NUMBER: AR20160005175 BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was 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 he properly declined the Survivor Benefit Plan (SBP) on 27 January 2014, with proper spousal concurrence, and his election was received and processed in a timely manner by the appropriate DFAS office. Such relief should result in the repayment of any previously paid SBP premiums. ______________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: 11 January 2018 DOCKET NUMBER: AR20160005175 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 Survivor Benefit Plan (SBP). 2. The applicant states: a. He and his spouse agreed not to elect to participate in the SBP. However, once retired, he noticed the SBP deduction on his retirement account statement (RAS). He enquired with the Defense Finance and Accounting Service (DFAS) into the inaccuracy and was informed the SBP statement did not arrive in his record. He was confused and asked many more questions to which there was no legitimate answer. b. He called DFAS again a few months later and was told that he had elected SBP. He was very upset but due to his numerous medical and psychological treatments by the Department of Veterans Affairs (VA), he was unable to continue following up on the situation. c. Recently, he called again and was told the SBP non-participation statement was in his records but DFAS was unable to correct the problem. A DFAS representative informed him that he would have to submit an application to the Army Review Board Agency (ARBA) and gave him the phone number in which he received the website for submitting the application. d. He believes there was an assumption made by DFAS that he elected to participate in the SBP. The representative in the officer retirement finance section submitted the non-participation election late. The DFAS representative informed him this is a recurring injustice. 3. The applicant provides: * Orders 008-0181, issued by Headquarters, III Corps and Fort Hood, Fort Hood, TX on 8 January 2014 * Spouse SBP Election Concurrence Statement * DD Form 2656 (Data for Payment of Retired Personnel), dated 27 January 2014 * fax cover sheet * Final Decree of Divorce, issued by the District Court for the 146th Judicial District, Bell County, TX * DD Form 2656-6 (SBP Election Change Certificate), dated 28 July 2016 CONSIDERATION OF EVIDENCE: 1. The applicant entered active duty on 5 October 2001. He was promoted to the rank of chief warrant officer four on 1 March 2011. 2. Orders 008-0181, issued by Headquarters, III Corps and Fort Hood on 8 January 2014, released him from active duty because of physical disability and ordered his retirement effective 7 April 2014, with placement on the TDRL effective 8 April 2014. 3. Order D260-65, issued by the U.S. Army Physical Disability Agency on 17 September 2015, shows he was removed from the TDRL on 17 September 2015, and his disability retirement was made permanent. 4. The applicant provides: a. A Spouse SBP Election Concurrence Statement, which shows his spouse concurred his election to decline SBP coverage on 16 January 2014. The form was witnessed and signed by a notary that same day. b. A DD Form 2656, which shows he applied for retired pay. Upon application for retired pay, he elected not to participate in SBP. He signed the form in the presence of a witness on 27 January 2014. The form shows he and his spouse resided at different locations and his spouse did not sign the form. c. A fax cover sheet that shows a representative from the Fort Hood, TX Officer Retirements, Transition Center faxed something to DFAS labeled "New Account Retirement" with the applicant's name and social security number listed. d. His Final Decree of Divorce, issued by the District Court for the 146th Judicial District, Bell County, TX on 12 July 2016. The divorce decree does not order an SBP election. e. A DD Form 2656-6, dated 28 July 2016, which shows the applicant elected to suspend SBP coverage due to his divorce. REFERENCES: 1. Public Law 92-425, the SBP, enacted on 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. Elections are made by category, not by name. An election to decline to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse (or child only, if applicable) coverage. 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. DISCUSSION: 1. The applicant's request for correction of his records to show he elected not to participate in the SBP was carefully considered. 2. The applicant received retirement orders on 8 January 2014, with a TDRL effective date of 8 April 2014. He elected to decline SBP coverage on 27 January 2014, which was prior to the effective date of his retirement. 3. His then-spouse made a written concurrence on his election to decline SBP coverage on 16 January 2014. Although her concurrence was dated prior to his election, she acknowledged their joint desire to decline SBP coverage prior to his retirement date. 4. The applicant contends DFAS has his election to decline spousal SBP coverage; however, he had to apply to the ABCMR to correct his record. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013328 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005175 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2