ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	 

	BOARD DATE:  17 May 2019

	DOCKET NUMBER:  AR20160015626


APPLICANT REQUESTS: Disenrollment from the Survivor Benefit Plan (SBP).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)

FACTS:

1.  The applicant states when he was released from active duty, he was not properly 
briefed on the details of the SBP.  He did not elect to participate in the plan and has set 
up the proper insurance policies to cover the circumstance.  He became aware of the 
SBP when he addressed a bill with Defense Finance and Accounting Service (DFAS) 
and was notified he was automatically enrolled in the SBP. 

2.  A review of the applicant’s service records show the following on:

*	2 August 2005 – enlisted in the Regular Army
*	7 January 2016 – an informal Physical Evaluation Board (PEB) convened and 
the PEB found the applicant physically unfit and recommended a combined 
rating of 50% and his disposition be placement on the temporary disability retired 
list 
*	17 December 2018 – an informal PEB reconvened and found the applicant 
physically unfit and recommended a combined rating of 30% and his disposition 
be permanent disability retirement
*	his record is void of documentation indicating he made a SBP election
*	his record contains a DD Form 93 (Record of Emergency Data) indicating he was 
married with two children, it is void of any indications he was divorced

3.  DFAS provided Case Management Division a letter, dated 6 February 2018, 
informing the applicant, starting in April 2018, DFAS would begin deducting SBP from 
his Combat Related Special Compensation (CRSC).  They normally deduct SBP 
premiums from retired pay.  However, as he knew, a military retiree must waive a 
portion of their gross retired pay, dollar for dollar, by the amount of their entitlement to 
Department of Veterans Affairs (VA) disability compensation; this is known as the VA 
Waiver.  Since his VA disability compensation was greater than his gross military retired 
pay, his military retired pay account was suspended.  As a result, they set up a direct 
remittance account for him to pay his monthly SBP premiums.  Now they would begin 
deducting his SBP premiums from his CRSC payment each month, instead of him 
paying his premiums directly.  The monthly deduction would begin with his premium due 
in April 2018, which would be deducted from his CRSC payment dated 1 May 2018.  
The new deduction was due to a change in the law which requires DFAS to deduct his 
SBP premium from CRSC when his retired pay was not sufficient to cover the full 
amount of his premium.  He was still responsible for paying the amount due from prior 
months and interest charges.  As of 31 January 2018, his total amount due was 
$2,169.37.

4.  On 15 April 2019, after the case was reviewed for legal sufficiency, the analyst of 
record emailed the applicant at the email address provided on the application and 
requested a notarized letter from the applicant’s spouse to support removal from the 
SBP.  As of 15 May 2019, the applicant had not responded. 

5.  See SBP laws in REFERENCES below. 

BOARD DISCUSSION:

1.  After review of the application and all evidence, the Board determined there is 
insufficient evidence to grant relief.  The applicant’s contentions were carefully 
considered, however, Public Law specifies that military members having a spouse 
and/or child(ren), who retire/transfer to the retired list, are automatically covered under 
SBP at the maximum rate unless they elected otherwise before retirement or transfer to 
the retired list.  There is no evidence that the applicant ever submitted an SBP request 
before retirement.  Public Law also established a one-year period for Retirees to 
withdraw from SBP, beginning on the second anniversary of the date on which their 
retired pay started.  However, Public Law also requires spousal agreement for 
withdrawal from SBP.  The Board found that the applicant was given 30 days to submit 
a notarized letter from his spouse to terminate SBP coverage, but the applicant failed to 
provide such a notarized letter from his spouse.
?
BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

: X	:X	:X	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or 
injustice.  Therefore, the Board determined the overall merits of this case are insufficient 
as a basis for correction of the records of the individual concerned.


	  
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.  Public Law 92-425, the SBP, enacted 21 September 1972, 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.  Public Law 105-85, enacted 18 November 1997, established the option to terminate 
SBP participation.  Retirees have a one-year period, beginning on the second 
anniversary of the date on which their retired pay started, to withdraw from SBP.

3.  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.

4.  DFAS website provides the following guidance related to SBP deductions from 
CRSC.  

	a.  The normal method of paying for SBP coverage is by an automatic deduction 
from your retirement pay.  The vast majority of retired members with SBP coverage pay 
through this means.  It is implemented automatically if you elect SBP coverage at the 
time you retire.

	b.  Beginning with the SBP monthly premiums due in April of 2018, DFAS started 
deducting SBP recurring monthly premiums from CRSC when retired pay is not 
sufficient to cover the full amount of the monthly premiums.  This new deduction is due 
to a change in the law, which requires DFAS to deduct SBP recurring monthly 
premiums from CRSC.

	c.  The change in the law only affects SBP recurring monthly premiums, beginning 
with the monthly premium due in April of 2018.  It does not affect past due SBP 
premium amounts.  DFAS is not deducting past due premiums from CRSC pay.  
Retirees who have past due SBP premiums are still responsible for paying the past due 
SBP premium amount and any interest accrued through direct remittance.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20160015626
	
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