ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 July 2019 DOCKET NUMBER: AR20160016959 APPLICANT REQUESTS: to terminate his Survivor Benefit Plan (SBP). APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * letter from spouse * Retiree Account Statement * Physical Disability Board of Review (PDBR) letter * Retirement Orders * Record of Proceedings PDBR * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 215 (Correction to DD Form 214) * letter from Defense Finance and Accounting Service (DFAS) * retired pay funds due * SBP bill * Data for Payment of Retired Personnel * SBP Termination Request FACTS: 1. The applicant states: * he went through a PDBR and was found to be 80 percent disabled through the military * he was medically retired as of April 2016 * he got out of the military in 2007 due to medical conditions with an honorable discharge and severance pay * he submitted his medical records to the VA in 2007 and automatically got 90 percent disability and had to pay back the severance pay * by 13 October 2016 the severance pay was paid back * he went to see a Retirement Service Officer (RSO) in Alabama in June 2016 * he filled out the paperwork for retirement and talked about the SBP * the RSO said the SBP would start a couple of months after filling the paperwork out * the RSO was wrong the SBP was retroactive to the date he got out of the military in 2007 * he now has a statement saying he owes that money * he did not technically retire until 2016 * he does not need the SBP and would like it off * he receives nothing from the military only the Veterans Affairs (VA) * he asks that the Board terminate his SBP * since he got out in 2007 he has never received a dime from the military * he was not placed on temporary retirement * he was just discharged because of medical discharge with severance pay * why now is has the military made a mistake in his records * now his family has to pay back monies he had nothing to do with or received any benefit from * he went through a PDBR and was found to be 80 percent disabled through the military * they medically retired him as of April 2016 but he got out of the Army in 2007 * if you have service connected disability with the VA for ten or more continuous years or if you have a total disability rating that has been held for not less than five continuous years from the last date of active duty you may withdraw from SBP participation * you can withdraw because your surviving spouse will receive Dependency and Indemnity Compensation because the death will be presumed to be from service connected reasons * a request to withdraw requires the written consent of your beneficiary * when you die your surviving spouse will be entitled to a refund of all the SBP costs that were paid * when you request to withdraw under these rules, DFAS must furnish you a written statement outlining the advantages and disadvantages of withdrawing * the change will not take effect until you confirm receipt of the information and acknowledge that you still wish to withdraw * if the VA disability rating is withdrawn or reduced SBP coverage may be resumed if you so desire * you must make the request to resume SBP coverage within one year after the VA rating has been withdrawn or reduced * he had no idea they would make the SBP retroactive to the date of his discharge in 2007 * he incurred a bill of $13,452.58 * he does not want the SBP nor does he need it * he is a GS civilian who works for the VA * his wife is an E7 in the reserves and is still in the military * he receives 90 percent disability pay from the VA * he is receiving nothing from the military as far as money goes * he asks the Board to let him decline the SBP 2. The applicant was honorably discharged from the service on 27 March 2007 for disability. He received severance pay in the amount of $32,533.20. 3. The applicant requested a PDBR and was granted and recommended the applicant's separation be re-characterized to reflect permanent disability retirement with a combined disability rating of 80 percent. 4. The applicant received a letter from the PDBR dated 25 May 2016 which stated his original separation order was revoked and an order permanently retiring him at 80 percent was published. The order was made retroactive back to the day he separated with disability severance pay. DFAS would provide him permanent retired pay and allowances effective the date of his original disability separation and account for recoupment of his severance pay. 5. The applicant was instructed to contact his nearest RSO for assistance in completing the DD Form 2656 (Data for Payment of Retired Personnel) to activate his retired pay account. The RSO would also provide retirement SBP counseling. 6. The applicant completed his DD Form 2656 on 20 June 2016. He elected SBP coverage for his spouse and children based on his full gross pay. He requested to terminate his SBP coverage on 11 October 2016. He and his wife both signed the form requesting termination and it was notarized by a notary on 11 October 2016. 7. The applicant provides a letter from his spouse signed and notarized on 1 November 2018 concurring with the SBP change requested by the applicant to terminate his SBP coverage. She understand the decision is irrevocable and that she is waiving her property rights to SBP. 8. The DFAS website states, eligible Retirees can withdraw from SBP due to qualifying VA disability if the retiree has a service connected disability rated by the VA as totally disabling for 10 or more continuous years; or the retiree has had a total disability rating from the VA for at least 5 continuous years immediately following the last date of active duty. 9. Public Law 105-85, 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. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, medical separation and subsequent medical retirement, his SBP election and subsequent declination of SBP with his spouse’s concurrence and the payments required for past SBP premiums. The Board found that the applicant may not have been aware of the retroactive payments required for SBP when his separation was changed to a medical retirement effective the original date of separation. The Board found that his election and subsequent declination upon realizing the impact of his election created an injustice and determined that a correction to his record was appropriate. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted.? 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 partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to show: - The DD Form 2656 the applicant completed on 20 June 2016 reflected in Section IX (Survivior Benefit Plan Election) item 26 ( Beneficiary Categories) that he selected X in item g. declining participation and that his spouse concurred with the election; - that his election was received and processed by the appropriate officials, and; - that he be refunded any premiums paid to date for SBP coverage. 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): N/A 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. This law, as amended, 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 elects 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. The spouse’s concurrence is required. No premiums will be refunded to those who opt to disenroll. Reservists who elected an option under the RCSBP will continue to have the Reservist Portion cost deducted from their retired pay. 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. 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. 4. DFAS website at https://www.dfas.mil/retiredmilitary/provide/sbp/change.html states, eligible Retirees can withdraw from SBP due to qualifying VA disability if: a. The retiree has a service connected disability rated by the VA as totally disabling for 10 or more continuous years; or b. The retiree has had a total disability rating from the VA for at least 5 continuous years immediately following the last date of active duty. Withdrawal is permitted because the surviving spouse will likely qualify for Dependency and Indemnity Compensation (DIC) benefits from the VA and the retiree’s death will be presumed to be from service-connected reasons. c. A request for withdrawal requires the written consent of the beneficiary. Upon the death of the retiree, the surviving spouse will be entitled to a refund of the SBP premiums that were paid. ABCMR Record of Proceedings (cont) AR20160016959 3