ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 July 2020 DOCKET NUMBER: AR20170013474 APPLICANT REQUESTS: refund of the premiums he has paid for Survivor Benefit Plan (SBP) coverage. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * DD Form 2656 (Data for Payment of Retired Personnel), dated 17 November 2015 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 21 December 2015 * Spouse SBP Election Concurrence Statement, notarized 20 May 2017 REFERENCES: 1. Public Law 92-425, enacted 21 September 1972, repealed the Retired Serviceman's Family Protection Plan and established the SBP.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. The election must be made before the effective date of retirement or else coverage defaults to automatic spouse coverage. 2. Title 10, U.S. Code, section 1448(a)(3)(A), requires spousal concurrence in any election not to participate in SBP, to provide an annuity for a spouse at less than the maximum level, or to provide an annuity for a dependent child but not for the member's spouse. FACTS: 1. The applicant states he is paying SBP premiums, but he elected not to enroll in the SBP. His wife at the time (now ex-wife) did not receive the letter of nonconcurrence. He verified this through the Defense Finance and Accounting Service and they are including the correct forms. 2. The DD Form 2656, dated 17 November 2017, he completed in connection with his physical disability retirement shows: a. in Section IX (SBP Election), block 26 (Beneficiary Category(ies)), he checked box g (I Elect Not to Participate in SBP) and indicated he did have eligible dependents under the plan; b. in Section IX, block 27 (Level of Coverage), he did not elect a level of coverage; and c. Section XII (SPB Spouse Concurrence) states a signature is required when the member is married and elects child(ren) only coverage, does not elect full spouse coverage, or declines coverage. Blocks 32 (Spouse) and 33 (Notary Witness) are not completed. 3. He retired by reason of temporary disability (enhanced) on 21 December 2015. 4. He provided a notarized Spouse SBP Election Concurrence Statement, signed 20 May 2017, which shows: a. The applicant's spouse acknowledged she understood she must elect to either concur or non-concur with her spouse's SBP election. She understood that if she non- concurred, did not have her signature witnessed by a Notary Public, or failed to complete and return the statement before 22 December 2015, the effective date of her spouse's retirement, her spouse would receive automatic spouse SBP coverage based on his full retired pay. b. She elected "I CONCUR with my spouse's SBP election to Decline SBP coverage." c. She personally appeared before a notary public and signed the statement; the statement was notarized on 20 May 2017. BOARD DISCUSSION: 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 insufficient evidence that the applicant obtained his then- spouse’s notarized signature on his 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 (now) ex-spouse signed the notarized declination of SBP two years after the applicant was automatically enrolled (because he did not have her signed, notarized consent to decline coverage on his original SBP election dated 17 November 2015). The Board found that the applicant does not provide, nor does the record contain, the divorce decree from the former spouse, which would have provided important information for the Board to consider regarding the ex-spouse’s rights to the applicant’s annuity. By law, an election, once made, is irrevocable except in certain circumstances. Therefore, the Board found insufficient evidence to support revoking the SBP and repaying premiums. 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. 8/10/2020 X CHAIRPERSON 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. //NOTHING FOLLOWS//