ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 December 2019 DOCKET NUMBER: AR20170006228 APPLICANT REQUESTS: termination of her participation in the Survivor Benefit Plan (SBP) and a refund of all premiums paid since retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) * Personal Statement * Letters from the Defense Finance and Accounting Service (DFAS) welcoming her to the Retired Rolls * Unsigned DD Form 2656 (Data for Payment of Retired Personnel) * DD Form 2656-2 (SBP Termination Request) FACTS: 1. The applicant states her SBP deductions have been erroneously taken out of her retired pay. She requests all monies returned to her immediately. She submitted notarized documentation on 8 September 2008 to terminate the SBP. She received her 20-Year Letter on 7 July 2008 with a form to elect and a form to terminate SBP. She was an IMA (Individual Mobilization Augmentee) Soldier. She discussed her options with her husband and elected to terminate the SBP. They had the documents signed and notarized and then submitted to the U.S. Army Human Resourced Command (HRC). She received notification from HRC on 25 September 2008. They did not receive any other correspondence. She submitted her retirement application on 19 February 2016, including a request to terminate the SBP. HRC requested she submit another DD Form 2656 (Data for Payment of Retired Personnel) electing not to participate in the SBP. She did so and sent it on 24 March 2016. She never received any other documentation on this matter from HRC. When she received her first retirement check, there was a deduction for the SBP. She immediately called the Defense Finance and Accounting Service (DFAS) to correct this and was told to wait 6 to 8 weeks for the deductions to stop. It never did. 2. A review of the applicant’s service records shows: a. The applicant was born in xxxx. She married her spouse on January. b. Having had prior active service, she enlisted in the U.S. Army Reserve (USAR) on 19 November 1997. She served through multiple reenlistments. c. On 3 July 2008, HRC issued her a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). It informed her that Public Law 95-397, 30 September 1978 created the Reserve Component (RC) Survivor Benefit Plan (RCSBP). It is her sole means of protecting her retired pay entitlement. Additionally, PL 106-398, dated 30 October 2000, requires that upon receipt of this letter, a qualified RC member, who is married, will automatically be enrolled in the RCSBP under Option C, spouse and child(ren) coverage based on the full amount, unless spouse concurrence is provided for a different option (Option A (defer election to Age 60), Option B (enroll and pay at Age 60), or Option C (elect children only or a lesser amount than the maximum level). d. There is no indication the applicant submitted an election (DD Form 1883 (SBP Election Certificate)) or DD Form 2656-5 (RCSBP Election Certificate)) declining the RCSBP or that her spouse concurred with such election. However, she provides a DD Form 2656-2, used by an SBP participant to discontinue participation in the SBP, signed by her on 8 September 2008 and by her spouse (albeit not notarized) also on 8 September 2008. e. On 11 November, she submitted an application for retired pay at age 60 (DD Form 108), indicating she wanted to retire on her 60th birthday in. f. She retired on her 60th birthday in March and she was placed on the Retired List in her retired grade of staff sergeant/E-6. He retirement orders were published in May g. On 24 March, after her effective retirement date, she submitted a DD Form 2656 (Data for Payment of Retired Personnel). She indicated she was married to and had no children. She elected not to participate in the SBP. Her spouse concurred with her election, signed the form on the same date, and had his signature notarized. h. DFAS sent her a letter on 2 May welcoming her to the Retired Rolls and provided a breakdown of her retired pay. It included a deduction for “spouse only” SBP coverage. 3. Public Law, 30 October 2000, requires that upon receipt of a qualified RC’s 20-Year Letter, who is married, will automatically be enrolled in the RCSBP under Option C, spouse and children coverage based on full retired pa, unless spouse concurrence is provided to allow one of the following elections: * Option A (defer enrollment until age 60 when you apply for retired pay). * Option B (enroll and pay an annuity when you would have been age 60): enroll spouse or spouse and children at less than the maximum level or Enroll children only * Option C (enroll and pay an annuity immediately upon your death) but: enroll spouse or spouse and child(ren) at less than the maximum level or enroll children only 4. Title 10 USC section 1448 also states 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 review of the application and all evidence, the Board determined there is sufficient evidence to grant partial relief. The applicant’s contentions were carefully considered. The Board notes that Public Law provides termination of SBP, with spousal concurrence after the 25th month of her enrollment at age 60. The Board agreed that there was sufficient evidence to show the applicant attempted to terminate SBP, with spousal concurrence and that the applicant should be allowed to terminate SBP coverage effective May 2018, within the 25th month guidelines, authorized by law. Such relief should result in the repayment of any previously paid SBP premiums from the 25th month to present. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was 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 by showing the applicant properly terminated SBP coverage for “spouse and child” within the 25th month of automatically being enrolled in SBP coverage, with proper spousal concurrence, and her election was received and processed in a timely manner by the appropriate HRC and DFAS office in 9 arch 2018. Such relief should result in the applicant receiving any premiums already paid from the date of her termination to present. 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief in excess of that described above. 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. 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. Since its creation, it has been subjected to a number of substantial legislative changes 2. Title 10, U.S. Code, section 1448 mandates a notice to a spouse if a member elected not to participate in the SBP. The statute also provides for automatic enrollment for spouse coverage at the full base amount unless a member affirmatively declines to participate in the SBP prior to receiving retired pay. The statute also requires 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. 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) AR20170006228 5 1