ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 October 2019 DOCKET NUMBER: AR20160012769 APPLICANT REQUESTS: correction of her records to show she elected not to enroll in the Survivor Benefit Plan (SBP). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Statemen5t from spouse FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States 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 she requests her DD Form 2656 (Data for Payment of Retired Personnel) be corrected to show she and her spouse declined the SPB at time of separation in January 2011 from Fort Hood, TX. After speaking with the Cleveland Office [of the Defense Finance and Accounting Service (DFAS)], she was informed they do not have a copy of this form. She was informed she was auto-enrolled into the program and she wishes to be un-enrolled retroactively to 2011. 3. Review of the applicant's service records shows: a. Having had prior service, the applicant enlisted in the Regular Army on 28 November 2006. She served through multiple reenlistments in a variety of assignments. b. There is no marriage certificate on file for the applicant. However, her service record contains a DD Form 93 (Record of Emergency Data) that reflects her spouse's name (Mr. X__ X__ X__) as well as the names of 5 dependent children. c. She retired on 24 January 2011 due to permanent disability and she was placed on the retired list in her retired grade of sergeant/E-5 on 25 January 2011. She completed 5 years, 4 months, and 14 days of total active service (current and prior). d. Her service record does not contain a DD Form 2656 reflecting her SBP election. Additionally, the Fort Hood Retirement Services Office no longer has a copy of her election. e. An email, dated 3 October 2019 from DFAS indicated "there are no SBP documents/information in this member's retired pay history file (GoDocs imaging system). The member has been Auto enrolled in SBP since retirement in 2011. This means that no DD Form 2656 was ever received from the member or the branch of service." 4. She provides a signed/notarized statement, dated 11 July 2016 from her spouse who states, regarding this application to the Board, he and his spouse are requesting that she be removed from the SBP program. He concurs that she declined the SBP DD Form 2656 in January 2011 during separation from the Army at Fort Hood. He still concurs with his spouse at this time. 5. By law (Title 10, U.S. Code, section 1448, or Public Law 92-425), every member having a spouse and/or child(ren), who retired/transfers to the retired list is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list. 6. Also by law (Public Law 105-85), 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was warranted. Board member recognize that the SBP is governed by law. There are timelines associated with enrolment or disenrollment. Board members felt the applicant was young and possibly did not understand the SBP. She and her spouse do not want this coverage. In the Board’s view, there is no reason to deny their request. Board members voted to grant relief. 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 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 submitted a DD Form 2656, before her retirement on 24 January 2011, electing not to enroll in the Survivor Benefit Plan (SBP) and her spouse concurred with her election, also before her retirement * the Defense Finance and Accounting Service (DFAS) timely received, accepted, and processed her election not to enroll on the SBP * DFAS auditing her retired pay record for possible reimbursement of any paid premiums, if applicable 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. 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, 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. 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. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20160012769 3 1