ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 November 2019 DOCKET NUMBER: AR20170003540 APPLICANT REQUESTS: his record be corrected to show that he was never enrolled in the Survivor Benefit Plan (SBP). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * A facsimile transmission to the Defense Finance and Accounting Service (DFAS) consisting of retirement related documents FACTS: 1. The applicant states he left the Army in August 2016 through the Fort Irwin, California Retirement Services Office (RSO). At that time, both he and his spouse signed and notarized the DD Form 2656 (Data for Payment of Retired Personnel) stating that they did not desire to participate in SBP. However, due to there being an error on the document, he was automatically enrolled in SBP. He contacted DFAS and was told that if he submitted a different form that would fix the problem. It did not. Instead he was enrolled into “spouse only” coverage. When he called DFAS again in February 2017, he was advised that only a RSO could assist. When he contacted Fort Irwin, he was told to submit an application to this Board. He did not ever, nor does he ever, wish to participate in SBP. 2. The applicant provides a facsimile successfully transmitted from the Fort Irwin, California RSO to DFAS on 19 August 2016. The facsimile contained the following: a. A DD Form 2656 (Data for Payment of Retired Personnel), signed by applicant on 17 August 2016. Item 26g “I elect not to participate in SBP” is checked as is the box indicating that he had eligible dependents. His signature appears in item 30a and the date signed appears in item 30b. Applicant’s spouse signed item 32 concurring with the SBP election made by her spouse before a notary public on 15 August 2016. Her signature appears in item 32a and the date signed appears in item 32b. Appearing immediately above her signature and the date is the following language: SECTION XII – SBP SPOUSE CONCURRENCE (Required when member is married and elects child (ren) only coverage, does not elect full spouse coverage, or declines coverage. The date of the spouse’s signature in item 32b MUST NOT (emphasis in the original) be before the date of the member’s signature in item 30b, above.) b. Orders 019-0028, dated 19 January 2016, retiring applicant effective 30 November 2016. 3. A review of the applicant’s service record shows: a. He enlisted in the United States Army Reserve on 18 August 1993 and the Regular Army on 3 November 1993. b. He was honorably retired for length of service on 30 November 2016. 4. Because the applicant’s spouse’s notarized signature pre-dated his election, the Board is unable to determine what election she was concurring in. 5. On 15 July 2019, applicant was contacted via email and asked to provide a new concurrence from his spouse. He did not respond. 6. By law and regulation, notarized spousal concurrence is required to any SBP election other than an election of maximum coverage, whether it be child only coverage, spouse coverage at a reduced level, or not to provide any coverage at all. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the relief was warranted. The applicant’s contentions were carefully considered. Based upon the preponderance of the evidence, the Board agreed that the applicant properly submitted his SBP election in a timely manner, electing not to participate in SBP. Therefore, the Board concluded that making the applicable corrections to show DFAS received his declination to enroll in SBP was appropriate, and that he should be entitled to any repayment of any previously paid SBP premiums. 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 17 August 2016, 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. REFERENCES: 1. Title 10, USC, section 1448, establishes the Survivor Benefit Plan (SBP). It essentially states, in pertinent part, that eligible participants include persons entitled to retired pay and persons who would be eligible for reserve-component retired pay but for the fact that they are under 60 years of age. A standard annuity participant is a person who is entitled to retired pay and who is married or has a dependent child when he becomes entitled to retired pay. A married person who is eligible to provide a standard annuity may not without the concurrence of the person’s spouse elect not to participate in the Plan, to provide an annuity for the person’s spouse at less than the maximum level, or to provide an annuity for a dependent child but not for the person’s spouse. Concurrence to any such election must be obtained before the first day for which he is eligible for retired pay. 2. The Department of Defense Financial Management Regulation, directs statutory and regulatory financial management requirements, systems, and functions for all appropriated and non-appropriated, working capital, revolving, and trust fund activities. Volume 7B, Chapter 43, addresses SBP elections and election changes. Paragraph 430303 E states, in pertinent part, that written spousal concurrence is required when the member elects to decline coverage or to provide the spouse with less than the maximum SBP coverage available. The signature of the spouse must be notarized. The requirement to have the spouse’s signature notarized is not to suggest that the spouse has received additional counseling regarding the option being selected. It simply provides certification that the spouse signed the form and acknowledges the election made on the form. If all requirements for an election needing the spouse’s concurrence have not been satisfied prior to retirement, for whatever reason, full spouse costs and coverage will be implemented, regardless of any request by the member to do otherwise. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170003540 3 1