BOARD DATE: 17 April 2018 DOCKET NUMBER: AR20160006801 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: AR20160006801 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 show he elected not to participate in the Survivor Benefit Plan (SBP). 2. The applicant states he was retired without meeting with his retirement noncommissioned officer. Consequently, he and his wife did not know they needed to complete a DD Form 2656-6 (SBP Election Certificate) to decline participation in the SBP. The form was never completed but he has been getting billed for SBP ever since retirement. He does not get retirement pay; he only gets disability from the Department of Veterans Affairs (VA) and social security. He and his wife never had the opportunity to complete a DD Form 2656-6 before he was medically retired. Had they known about this, it would have been done. His record is not correct and he keeps getting billed due to this error. 3. The applicant provides a DD Form 2656-2 (SBP Termination Request) and a DD Form 2656-6. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Maryland Army National Guard (MDARNG) on 11 August 2005. 2. The U.S. Army Physical Disability Agency (USAPDA) notified the applicant on 6 October 2014 that he would be permanently retired due to disability. He was further informed: * orders were attached announcing the effective date of his retirement * his retired pay would be computed from the effective date of his retirement * he needed to complete a DD Form 2656 (Data for Payment of Retired Personnel) to activate his retired pay account * he should immediately contact the nearest installation retirement services officer (RSO) for assistance * he was provided a link with a listing of all RSOs available who could provide him with retirement and SBP counseling * he was instructed to call the Army G-1 for assistance if he had trouble contacting his nearest RSO 3. Order D 279-24, issued by USAPDA on 6 October 2014, announced the applicant would be released from his assignment and placed on the permanent disability retired list (PDRL) effective 10 November 2014. 4. An NGB Form 22 (National Guard Report of Separation and Record of Service) shows the applicant was released from the MDARNG and transferred to the Retired Reserve on 9 November 2014. The NGB 22 shows he was unavailable for signature. 5. Defense Finance and Accounting Services (DFAS) confirmed the applicant's record is void of evidence he completed a DD Form 2656 and that his SBP status reflects "Auto Coverage." 6. The applicant provides: a. A DD Form 2656-2, dated 18 March 2016, which shows he requested, in the presence of a notary, to terminate SBP coverage with his spouse's concurrence. b. A DD Form 2656-6, dated 18 March 2016, which shows he requested to suspend his SBP coverage. This form is not applicable to his case. Suspended coverage occurs when the member losses his/her spouse beneficiary to death or divorce, or his/her former spouse beneficiary remarries before age 55, or his/her children exceed the age for eligibility. REFERENCES: 1. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. 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. Department of Defense Financial Management Regulation, volume 7B, chapter 43, provides guidance on SBP elections. This chapter states, in pertinent part, that effective 1 March 1986, a married member is enrolled with spouse coverage based on full retired pay at the time of retirement unless that spouse has concurred in writing to another election requested by the member. When the spouse's concurrence is required, the signature indicating concurrence must be corroborated by one or more witnesses. 4. 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: 1. In this case, the evidence provided by the applicant shows that after having been automatically enrolled into the SBP upon his retirement on 10 November 2014, his spouse concurred with his election to decline SBP coverage on 18 March 2016. 2. DFAS confirmed the applicant's record is void of a DD Form 2656 that shows he elected or declined SBP coverage prior to his retirement. He was automatically enrolled into SBP. 3. The applicant's decision to terminate SBP coverage on 18 March 2014 does not meet the appropriate timeframe established by Public Law 105-85. The Board may correct his record to show he terminated SBP coverage on 10 November 2016, which is the second anniversary of his retirement date. He would not be authorized reimbursement of premiums paid before the disenrollment date because he was married at the time of his retirement. 4. As a matter of equity and understanding, since it appears the applicant out- processed unconventionally, possibly from his place of residence, the Board may recommend correction of his record to show he declined SBP coverage before he was retired. In addition, the Board may recommend correction of his record to show his spouse concurred with his declination of SBP coverage prior to his retirement. BOARD DATE: 17 April 2018 DOCKET NUMBER: AR20160006801 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 he and his spouse elected not to participate in the Survivor Benefit Plan (SBP) by properly completing a DD Form 2656 (Data for Payment of Retired Personnel) prior to his retirement * refunding any SBP premiums paid 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) AR20160006801 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006801 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2