BOARD DATE: 13 June 2018 DOCKET NUMBER: AR20160006699 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: 13 June 2018 DOCKET NUMBER: AR20160006699 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: * showing the applicant timely completed a DD Form 2656 electing not to participate in the SBP and that his spouse concurred with his decision on the same date * showing DFAS timely received and processed the applicant's DD Form 2656 declining the SBP with his spouse's concurrence * reimbursing all premiums already paid by the applicant as a result of this correction and/or cancelling any debt including interest, penalties, and costs associated with his SBP debt ______________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: 13 June 2018 DOCKET NUMBER: AR20160006699 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 cancellation of the Survivor Benefit Plan (SBP). 2. The applicant states he was awarded the SBP in 2012 as part of the agreement in the class action lawsuit Sabo v. United States. He and his wife decided to terminate their SBP coverage between the 25th and 36th month because he was unable to pay the retroactive SBP premiums since his retirement was retroactive to his date of separation on 11 December 2006. He sent the appropriate forms to the Defense Finance and Accounting Service (DFAS), but they did not terminate his SBP. He states the 1 year period to terminate his participation in SBP expired prior to his placement on the temporary disability retired list (TDRL). His wife concurs with his decision to terminate SBP as shown on his notarized SBP termination request. 3. The applicant provides: * U.S. Army Physical Disability Agency (USAPDA) letter to applicant dated 27 April 2012 * DFAS letter to applicant dated 20 June 2012 * DFAS SBP Premium Bill for March 2016 and March 2018 * DD Form 2656-2 (SBP Termination Request) * marriage certificate * email CONSIDERATION OF EVIDENCE: 1. On 12 August 2003 the applicant enlisted in the Regular Army. He served in Iraq from 1 October 2004 to 1 January 2005 and again from 1 July 2005 to 1 October 2005 as an Infantryman. During his break between his two tours in Iraq, the applicant married on 21 February 2005. 2. Headquarters, United States Infantry Center, Fort Benning, GA, published Orders 310-2204, dated 6 November 2006, directing his discharge with disability severance pay effective 10 December 2006. 3. On 10 December 2006, he was honorably discharged with severance pay due to physical disability. 4. Records show he was a participant in the Sabo v. United States lawsuit. 5. On 13 December 2011, Headquarters, United States Army Maneuver Center of Excellence, Fort Benning, GA, issued Orders 347-2275 revoking Orders  310-2204 as a result of the Sabo Settlement Agreement, dated 12 August 2011. Orders 349-2243 also placed the applicant on the TDRL effective 11 December 2006. 6. The applicant's DD Form 2656 (Data for Payment of Retired Personnel) showing his election to participate in the SBP and his elected coverage is not available for review. 7. On 26 April 2012 the applicant's DD Form 214 was amended to delete his disability severance pay, to show he retired, to show the appropriate new retirement authority, and to show his placement on the TDRL. 8. Order 118-51, dated 27 April 2012, issued by the U.S. Army Physical Disability Agency, shows the applicant was placed on the TDRL effective 11 December 2007. This order also shows he was removed from the TDRL effective 20 June 2007 with a 70 percent disabling rate and placed on the permanent disability retired list (PDRL). 9. The applicant provided the following evidence in support of his application: a. a letter, dated 27 April 2012, from the U.S. Army Physical Disability Agency informing the applicant he would be placed on the TDRL with a disability rating of 50 percent. Further, after 6 months the applicant would be placed on the PDRL with a disability rating of 70 percent based on the settlement agreement. He was advised to contact the Retirement Services Officer at his nearest installation to complete DD Form 2656 (Data for Payment of Retired Personnel). b. a letter, dated 20 June 2012, from DFAS Retired and Annuitant Pay showing he had a debt of $3,604.60 in SBP premiums. c. a DD Form 2656-2 showing his wife concurred with the applicant's request to cancel participation in the SBP on 6 October 2014. This form is notarized by a third person. d. a letter, dated 20 October 2014, showing DFAS would not process his termination request because it was not received during the withdrawal window of the 25th month to the 36th month after his first eligibility to receive retired pay. e. a DFAS SBP Premium Bill for March 2016 shows his SBP premium cumulative debt was $8,278.87. f. a DFAS SBP Premium Bill for March 2018 shows his SBP premium cumulative debt was $11,174.35 with monthly interest charges and monthly fees. 10. On 8 May 2018 a member of the staff contacted the applicant by email. The purpose of the email was to advise the applicant and his spouse that a decision to cancel SBP was an irrevocable decision based on law. On 11 May 2018 the applicant and his spouse responded, stating, in effect, they want to pursue cancellation of SBP. REFERENCES: 1. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members serving on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election, once made, was irrevocable except in specific circumstances. This law also provided that every member having a spouse and/or child(ren) who retired/transferred to the Retired List on or after that date is automatically covered under the SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the Retired List. 2. 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 AND CONCLUSIONS: 1. As a result of the Sabo Agreement, dated 11 August 2011, the applicant's discharge in 2006 was revoked and he was retroactively placed on the TDRL List in 2012 with an effective date of 11 December 2006. 2. Since the applicant's retirement was retroactive, SBP premiums and any interest became due upon his election and were retroactive to his retirement date of 10 December 2006. Further, his 1-year period to terminate his participation expired prior to his placement on the TDRL. His spouse concurs with his decision to terminate SBP as indicated in her notarized statement. By email the applicant and his spouse have stated they understand that their decision to withdraw from the SBP is irrevocable. 3. There are no barriers to recommending correction of the applicant’s record to show he submitted a timely election not to participate in the SBP with his spouse’s concurrence. Such a recommendation would effectively relieve him of the SBP debt he has incurred. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006699 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160006699 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2