BOARD DATE: 17 April 2018 DOCKET NUMBER: AR20160006778 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :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: 17 April 2018 DOCKET NUMBER: AR20160006778 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 his records to show he elected not to participate in the Survivor Benefit Plan (SBP) and his spouse concurred with his election, prior to his retirement. He also requests reimbursement of all monies paid to date. 2. The applicant states SBP deductions have been withdrawn from his retired pay although he declined participation and his spouse concurred with his election to decline participation. His spouse never received documents to sign prior to his retirement date of 31 December 2015. She received certified mail documents that were sent back, after his retirement date, by the Retirement Services Officer (RSO) at Fort Jackson, SC. His spouse signed the papers and returned them on 15 January 2016. Through no fault of his own or his spouse, the documents were submitted late. The RSO failed to submit the SBP packet in a timely manner. He now requests SBP participation stopped and all premiums collected be returned to him. 3. The applicant provides: * Marriage Certificate * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Retirement orders * DD Form 2656 (Data for Payment of Retired Personnel) * Retiree Account Statement CONSIDERATION OF EVIDENCE: 1. Having had prior enlisted and commissioned officer service, the applicant was appointed as a Reserve commissioned officer of the Indiana Army National Guard and executed an oath of office on 11 December 2011. 2. He was promoted to major (MAJ) in October 2012. He entered active duty on 1 October 2013. He was married to Cheryl on 11 April 2014. He was assigned to 3rd Army, Shaw Air Force Base, SC, and serviced by Fort Jackson, SC. 3. On 22 September 2015, in connection with his upcoming retirement, and in the presence of a Retirement Services Officer (RSO), he completed a DD Form 2656. His spouse resided in Indiana at the time. This form shows: * he was married Cheryl and they have no dependent children * he elected not to participate in the SBP * he indicated he understood he could terminate SBP with his spouse's concurrence within 1 year after the second anniversary of commencement of retired pay * he signed and the RSO signed this form on 22 September 2015 * the spouse did not sign this form although Section XII (SBP Spouse Concurrence) states spouse concurrence is required when the member is married and does not elect full spouse coverage, that the signature must not be before his signature, and that it must be notarized * he acknowledged if he failed to obtain his spouse's concurrence to an SBP election before his retirement, then he would be automatically enrolled in full SBP 4. He retired on 31 December 2015 and was placed on the Retired List in his retired rank/grade of MAJ/O-4 on 1 January 2016. He was credited with 20 years, 3 months, and 29 days of active service. 5. He provides a Spouse SBP Election Concurrence Statement that shows his spouse Cheryl concurred with is election to decline SBP coverage. The statement is signed and dated on 15 January 2016. The signature was notarized by a notary public. 6. The Defense Finance and Accounting Service (DFAS) indicated that there was no spousal concurrence for the SBP election and, as such, he was automatically enrolled for "spouse and children." 7. His February 2016 Retiree Account Statement shows in the SBP block that he currently has "Spouse only" SBP coverage and his SBP premium cost is $244.08 for the month. REFERENCES: 1. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members 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 certain circumstances. This law also provides that every member having a spouse and/or child(ren), who retired/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list. 2. Title 10 U.S. Code (USC), section 1448, required notice to a spouse if a member elected not to participate in the SBP. The statute also provided for automatic enrollment for spouse coverage at the full base amount unless a member affirmatively declined to participate in the SBP prior to receiving retired pay. Title 10 USC, section 1448 was amended effective 1 March 1986 to require written concurrence by the spouse in a member's decision to decline the SBP or elect spouse coverage at less than the full base amount. 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 election is received by the Secretary concerned. DISCUSSION: The applicant contends his records should be corrected to show he elected not to participate in the SBP and that his spouse concurred with his election, on time, and, that paid premiums should be refunded. The SBP is a program that is governed by statute. a. When a member is married; makes an SBP election before retiring; and declines SBP coverage, elects children only SBP coverage, or does not elect full spouse coverage, the spouse must concur in writing on or after the date the member made the election but before the member's retirement date. b. Before his retirement, the applicant completed a DD Form 2656 on 22 September 2015. He elected to decline participation in SBP. He was counseled and understood that his spouse was required by statute to concur with this election. He was married at the time, however due to his military orders they were physically separated (he was in South Carolina and she was in Indiana). c. The applicant’s spouse did not attend any pre-separation and retirement appointments with the applicant. The paperwork provided by the RSO states that the applicant’s spouse needed to return the form to the RSO by "December 31, 2015." There is no evidence that the document was sent in a timely manner to the applicant’s spouse. There is also no evidence that the applicant’s spouse made any election prior to his retirement date. As a result, his SBP coverage on his retirement date (1 January 2016) defaulted by law to spouse coverage based on the full amount. d. After his retirement, specifically on 16 January 2016, his spouse signed that form agreeing with his previous election not to participate in the SBP. This form is not a valid form because it was submitted outside the authorized statutory time frame to terminate coverage. By law, in this case, spouse concurrence was required on or before the date the applicant retired. e. Regardless of whether the applicant’s spouse received the document prior to the applicant’s retirement, it is possible that the RSO may have failed to appreciate the urgency of having the election processed by DFAS prior to the applicant’s retirement date. Even if the applicant’s spouse had received the document in a timely manner, the RSO did not require her to return it until just one day prior to the applicant effective retirement date. Had the applicant’s spouse returned the document on 31 December 2015, as permitted by the RSO, it is unlikely that DFAS would have both received and processed it prior to 1 January 2016. The evidence indicates there may have been a Government error in this case, which would support a recommendation to grant relief. BOARD DATE: 17 April 2018 DOCKET NUMBER: AR20160006778 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 elected, in a timely manner, not to participate in the Survivor Benefit Plan (SBP) and his spouse concurred with his election before he retired and by reimbursing him any premiums paid as a result of this correction. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160006778 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006778 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2