IN THE CASE OF: BOARD DATE: 27 February 2020 DOCKET NUMBER: AR20170013477 APPLICANT REQUESTS: in effect, correction of his DD Form 2656 (Data for Payment of Retired Personnel) to show he declined 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) * Memorandum, U.S. Army Physical Disability Agency, dated 20 September 2016, subject: Permanent Physical Disability Retirement * Order D 264-27, U.S. Army Physical Disability Agency, dated 20 September 2016 * DD Form 2656, dated 17 November 2016 * Letter, Defense Finance and Accounting Service (DFAS), 12 June 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 Public Law 92-425, enacted 21 September 1972, repealed the Retired Serviceman's Family Protection Plan and established the SBP.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 SBP 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 person's spouse. FACTS: 1. The applicant states: * he and his wife declined the SBP and are being charged the premiums every month * he retired from the Army on 25 October 2016 * his retirement order was dated on 20 September 2016, which was 35 days prior to the date of his retirement * the Physical Evaluation Board (PEB) Liaison Officer at Fort Buchanan, Puerto Rico, notified him of his retirement on 9 November 2016, 15 days after his retirement date * this prevented him from declining the SBP on that date and prior to his retirement * this error was not caused by him – he blames the person who should have kept him informed or the system * he wants cancelation of the SBP effective the date of his retirement and not to be charged for monthly premiums or be penalized in any way 2. On 20 September 2016, the U.S. Army Physical Disability Agency advised the applicant he was found to have a disability and would be permanently retired with a disability rating of 50 percent. DFAS will compute his retired pay and establish his retired pay account. He must first complete a DD Form 2656. He should immediately contact the nearest installation Retirement Service Office for assistance completing the DD Form 2656 to activate his retired pay account. 3. U.S. Army Physical Disability Agency Order D 264-27, dated 20 September 2016, retired him by reason of permanent physical disability and placed him on the Retired List effective 25 October 2016 in the retired grade of E-5. He was assigned a disability rating of 50 percent. 4. On 24 October 2016, he was honorably separated from the Puerto Rico Army National Guard by reason of placement on the Permanent Disability Retired List. 5. His DD Form 2656, dated 17 November 2016, shows: a. in Section IX (SBP Election), block 26f (Beneficiary Category(ies)), he elected not to participate in the SBP; 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. Block 32a is signed by his spouse and her signature was notarized on 17 November 2016. 6. His DFAS-Cleveland Form 1741/142 (SBP/Retired Serviceman Family Protection Plan Premium Bill) for April 2017 shows $390.97 due for SBP premiums. 7. On 12 June 2017, DFAS contacted him in writing, stating they cannot process his SBP request because his original election was signed after his retirement date, making it invalid. He was instructed to submit a request to the Army Board for Correction of Military Records. 8. His DD Form 2656-2 (SBP Termination Request), dated 18 December 2018, shows: a. in Section III (Termination Request), he requested discontinuance in SBP; and b. in Section IV (Spouse Concurrence), his spouse concurred with his decision to terminate participation in the SBP. Her signature was notarized on 18 December 2018. 9. On 19 January 2019, DFAS again contacted the applicant in writing, stating they are unable to process his SBP request because he has been enrolled in automatic coverage SBP since his retirement. He was instructed to complete DD Form 2656-8 (SBP Automatic Coverage Fact Sheet) as if he completed it on his retirement date of 26 October 2016. 10. His DD Form 2656-2, dated 27 April 2019, shows: a. in Section III (Termination Request), he requested to discontinue participation in the SBP; and b. in Section IV (Spouse Concurrence), his spouse concurred with his decision to terminate participation in the SBP. Her signature was notarized on 27 April 2019. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief is warranted. The record should show that he and his wife elected and concurred that they did not want to participate in SBP effective 24 October 2016. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 that he and his wife elected and concurred that they did not want to participate in SBP effective 24 October 2016; and reimburse the applicant all funds paid for SBP from 24 October 2016. 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// ABCMR Record of Proceedings (cont) AR20170013477 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1