I BOARD DATE: 17 April 2018 DOCKET NUMBER: AR20160006783 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: AR20160006783 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 record to cancel his survivor benefit plan (SBP) coverage effective the date of his retirement, and reimburse any premiums paid and correct his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his already-awarded Meritorious Service Medal. 2. The applicant states, in effect: a. The office in Hawaii (apparently referring to the Retirement Services Office (RSO)) never told him his SBP benefits were irrevocable; instead, they said his SBP would be deducted from his retired pay. He contends he is not receiving retired pay. He further asserts he told the office he did not qualify for retired pay; they responded, "Yes." b. He maintains he told them he did not want to use his Department of Veterans Affairs (VA) money to pay for SBP. He states he was in psychological shock because of his separation, and that he believed everything they told him. c. He requests his SBP coverage be cancelled. The money he receives from the VA is not enough to sustain his family financially. He has tried all that he could to cancel the SBP; he contends what he was told about benefits is not true. Every agency with whom he deals only wants a Veteran's money. d. His last day of service was 28 November 2015; the Defense Finance and Accounting Service (DFAS) began collecting money in October 2015. e. He received the Meritorious Service Medal the day he left Hawaii and it was not added to his DD Form 214. 3. The applicant provides: * DA Form 638 (Recommendation for Award), dated 17 July 2015 * Meritorious Service Medal Certificate * Orders Number 209-0019, dated 28 July 2015 * DFAS letter, with attachments, dated 29 October 2015 * DD Form 2656-2 (SBP Termination Request), dated 6 January 2016 * DFAS letter, dated 8 January 2016 * information for applicant's U.S. Congressman, dated 29 February 2016 * DFAS letter to the applicant's U.S. Congressman, dated 17 March 2016 CONSIDERATION OF EVIDENCE: 1. The applicant's date of birth is XX January 19XX. 2. Having prior enlisted service, the applicant enlisted in the Regular Army on 6 January 2000. 3. The applicant married his current spouse on 15 December 2006. 4. On 26 June 2015, a physical evaluation board (PEB) determined he was unfit for continued military service. The PEB recommended a disability rating of 60 percent and placement on the permanent disability retired list (PDRL). On 29 June 2015, the applicant concurred with the PEB's findings and waived his right to a formal hearing. 5. Orders Number 198-0016, dated 17 July 2015, issued by the U.S. Army Garrison – Hawaii (as amended by Orders Number 209-0019, dated 28 July 2015), show: * reporting date to the Transition Center was 14 August 2015 * retirement/separation date – 28 November 2015 * he was required to contact the RSO not later than 90 days prior to reporting to the Transition Center; the RSO would provide counseling on SBP and assist in the completion of his DD Form 2656 (Data for Payment of Retired Personnel) * he was authorized concurrent travel for his spouse and two children (both under 18 years of age) * he was being released from duty due to physical disability and was to be placed on the PDRL; retirement effective date was 28 November and placement on the PDRL was 29 November 2015 6. On 4 August 2015, he completed his DD Form 2656 (Data for Payment of Retired Pay) and showed the following with regard to SBP, he: * was married with two children (both under 18 years of age) * elected coverage for spouse and children * the level of coverage was full gross pay * signed the form; also shown is the name, title, and signature for the person who counseled him on SBP benefits 7. He was honorably retired on 28 November 2015. His DD Form 214 shows he completed 15 years, 10 months, and 23 days of net active service, with 4 months and 14 days of prior active service. 8. The applicant provides: a. DFAS letter, dated 29 October 2015, addressed to the applicant, in which DFAS welcomed the applicant to the Retired roll of the U.S. Army. The letter also included a summary of his retired pay account, indicated his SBP coverage was for spouse and children, and stated the monthly cost would be $157.19. b. DFAS-CL Form 7220/148 (Retiree Account Statement), dated 3 December 2015 and effective 31 December 2015, showed SBP Costs of $157.19 had been deducted from his retired pay. c. DD Form 2656-2, dated 6 January 2016, in which he requested the termination of his SBP. The form showed both his signature and the signature of his spouse, indicating her concurrence with terminating SBP. d. DFAS letter, dated 8 January 2016, sent in response to the applicant's submission of the aforementioned DD Form 2656-2, in which DFAS essentially stated the applicant could withdraw from SBP, but had to wait until a point that was between the 25th and 36th month following his retirement. At the time of the letter, the applicant had only been retired for 2 months. e. DFAS letter, dated 17 March 2016, addressed to the applicant's U.S. Congressman. DFAS addressed a number of pay-related issues; with regard to SBP, DFAS again noted the applicant was not yet eligible to cancel his SBP coverage. f. Meritorious Service Medal Certificate for exceptionally meritorious service from 26 March 2013 to 28 November 2015; the award certificate shows it was authorized by Permanent Order (PO) Number 224-002, (date apparently cutoff), issued by Headquarters, 8th Theater Sustainment Command. 9. In an email, sent on 28 March 2018, DFAS confirmed the applicant had terminated his SBP coverage, effective 4 December 2017. 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. 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 coverage. The SBP is not an investment plan. Children are no longer eligible beneficiaries when they reach age 18, or 22 years of age if a full-time student. 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 SBP. The spouse’s concurrence is required. No premiums will be refunded to those who opt to dis-enroll. 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. 3. Title 10 U.S. Code (USC), section 1448, outlined out the SBP was to be applied. a. Persons entitled to retired pay were eligible to participate in the SBP; SBP was available for members who were married or had a dependent child at the time he/she became eligible for retired pay. b. 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. DISCUSSION: 1. The applicant requests termination of his SBP coverage. The SBP is a program that is governed by statute. Termination may only occur during authorized periods. In the applicant's case, during the 1-year period, beginning on the second anniversary of the date on which their retired pay started a. When a member is married, and/or has children, he/she can elect to decline SBP coverage. This declination, however, requires the spouse's written concurrence, and this election must be executed before the member's retirement date. b. It appears that, at some point before he retired, the applicant either completed a DD Form 2656 (not available for review) wherein he elected full SBP coverage, or, because he failed to make an election, was mandated to have full SBP coverage for his spouse and children by default. Whichever was the case, full coverage SBP premiums began to be taken out of his retired pay. c. After his retirement, he completed and signed a DD Form 2656-2, dated 6 January 2016, in which he requested the termination of his SBP coverage. The form also showed, by her notarized signature, that his spouse concurred with the applicant's termination request. d. It is evident the applicant's intent all along was not to participate in the SBP, and that his spouse agreed. It seems harsh to charge the applicant premiums for a program that neither he nor his spouse desire. Although there is no Government error, equitable relief may be appropriate in this case. 2. Should the Board elect to grant relief, the Board could correct his record, as a matter of equity to show he elected, in a timely manner, not to participate in the SBP, and that his spouse concurred with his election at the time, prior to his retirement date of 28 November 21015. With this determination, he could be reimbursed any premiums paid prior to this correction. 3. The Board could also deny his application on the basis that there is no Government error. The applicant was briefed by the servicing RSO and, as such, could be presumed to have made an informed decision regarding his participation in this program. 4. The applicant provides an award certificate that displays the permanent orders, which authorized the Meritorious Service Medal. His DD Form 214 does not reflect this award. BOARD DATE: 17 April 2018 DOCKET NUMBER: AR20160006783 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: a. adding his already-awarded Meritorious Service Medal to his DD Form 214, ending 28 November 2015, and b. showing he elected, in a timely manner, not to participate in the Survivor Benefit Plan and his spouse concurred with his election and 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) AR20160006783 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006783 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2