ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


		BOARD DATE:  30 April 2019

	DOCKET NUMBER:  AR20160010314


APPLICANT REQUESTS:  Correction of his records to show he elected not to 
participate in the Survivor Benefit Plan (SBP).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record Under the Provisions 
of Title 10, U.S. Code, Section 1552)
*	Fax Cover Sheet, dated 3 December 2009
*	DD Form 2656 (Data for Payment of Retired Personnel), dated 5 March 2010
*	SBP spouse concurrence statement, dated 29 January 2018

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, U.S. 
Code (USC), Section 1552 (b); however, the Army Board for Correction of Military 
Records (ABCMR) conducted a substantive review of this case and determined it is in 
the interest of justice to excuse the applicant's failure to timely file.

2.  The applicant states he elected not to be enrolled in the SBP during his expiration 
term of service briefing.  He filled out and signed the form with his wife and a witness.  
He was not informed that it needed to be notarized to be official and he wasn't permitted 
to leave the building to facilitate the notarization.  At no point did he want to participate 
in the SBP program and he would like to be removed now that the reason has been 
identified.

3.  The applicant enlisted in the Regular Army on 19 April 2005.

4.  Orders 054-0912, issued by U.S. Army Garrison, Fort Gordon, Fort Gordon, GA on 
23 February 2010, released him from active duty because of physical disability and 
ordered his retirement effective 13 April 2010, with placement on the Temporary 
Disability Retired List effective 14 April 2010.

5.  A DD Form 2656, dated 5 March 2010, shows the applicant 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 the same date.  However, the form is not 
notarized.

6.  A fax cover sheet from a representative of the Fort Gordon Transition Center shows 
documents were faxed to the Defense Finance and Accounting Service (DFAS) for 
processing.

7.  The evidence of record shows the applicant, with his spouse's notarized 
concurrence, elected not to participate in the SBP program on 29 January 2018.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is sufficient 
evidence to grant relief.  The applicant’s contentions were carefully considered.  The 
Board agreed the applicant tried to decline SBP coverage with the concurrence of his 
spouse before payments were made.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:X	:X	:X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


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 13 April 2010, 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.  


	  
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.

ADMINISTRATIVE NOTE(S):

Not Applicable

REFERENCES:

1.  Title 10, USC, Section 1552(b), provides that applications for correction of military 
records must be filed within three years after discovery of the alleged error or injustice.  
This provision of law also allows the ABCMR to excuse an applicant's failure to timely 
file within the three-year statute of limitations if the ABCMR determines it would be in 
the interest of justice to do so.

2.  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. 

3.  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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20160010314

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