ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 5 August 2019 DOCKET NUMBER: AR20170014944 APPLICANT REQUESTS: correction of his records to show he elected to participate, rather than decline participation, in the Survivor Benefit Plan (SBP) for his spouse. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 August 2015 * DD Form 2656 (Data for payment of Retired Personnel), dated 10 June 2015 * Retirement orders * Marriage certificate * Post-retirement statement from his spouse, dated 7 April 2017 FACTS: 1. The applicant states he wants the error on the DD Form 2656, The Survivor Benefits Plan Election, corrected. He does in fact wish to participate in this plan. The reason for his request is that it was not properly explained to him and his spouse that when they signed this form, they were basically saying that he did not want to participate in the SBP. He was lead to believe, and he asked the question why he needed to sign to this and what was it for? He asked if this is the form that he needed to sign if he did not want to continue to pay for the SGLI (service members' group life insurance) after his retirement date and he was told yes, and that he needed to sign it and his wife also needed to sign it and have it notarized. There was no detailed explanation about the SBP; so, they elected not participate. He found out on 1 December after he contacted the U.S. Army Human Resources Command and the Defense Finance and Accounting Service (DFAS) that, that was not the case, and that he had been misinformed. If he had been told the correct information, he would have made a better decision and chose to participate in the SBP. He wants to make sure that in case he is deceased and his wife is still alive that she will receive his retirement benefits. 2. Review of the applicant's service records shows: a. He was born in June 1962. He and his spouse, Mary were married on 24 June 1992. b. Having had prior service, he enlisted in the U.S. Army Reserve on 28 September 1998. He entered active duty on 1 November 1998. c. He served through multiple reenlistments and attained the rank/grade of master sergeant (MSG)/E-8. d. On 6 March 2008, he was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). e. On 10 June 2015, in connection with his application for retirement, he completed a DD Form 2656. He indicated he was married to Mary and they had no dependent children. He marked the box "I elect not to participate in the SBP." He and a Retirement Services Officer signed the form on that date. His spouse also signed the form and had her signature notarized on that same date. She stated: I hereby concur with the Survivor Benefit Plan election made by my spouse. I have received information that explains the options available and the effects of those options. I know that retired pay stops on the day the retiree dies. I have signed this statement of my free will. f. He retired on 31 August 2015 and he as placed on the retired list in his retired grade of MSG/E-8 on 1 September 2015. g. After his retirement, on 27 September 2016, he completed another DD Form 2656. He indicated that he was married and elected SBP coverage for spouse, based on the full gross retired pay. He and his spouse signed this form. DFAS rejected it because he had already elected not to participate in the SBP, and his current election was not received during an authorized period (before retirement). h. He provides a signed and notarized statement from his spouse, dated 7 April 2017, indicating that she understands the cancellation of the SBP would not be in the best interest in case of her husband's death. i. On 15 May 2017, he completed yet another DD Form 2656. He indicated that he was married and elected SBP coverage for spouse. He and his spouse signed this form. DFAS rejected it because he had already elected not to participate in the SBP, and his current election was not received during an authorized period (before retirement). 3. By law (Title 10, U.S. Code, section 1448(a)(4)), a standard annuity election is irrevocable if not revoked before the date on which the person first becomes entitled to retired pay. 4. Periodically, Congress passes laws that establish Open Seasons which allow SBP enrollment or changes to SBO participation. Public 108-375, enacted 28 October 2004, established an Open Season from 1 October 2005-30 September 2006. Open Seasons are extensively publicized in Army Echoes to ensure all retirees were informed of their existence. 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. He and his spouse elected not to participate in the SBP upon his retirement. Public law provides once the decision to decline coverage was made, it became an irrevocable decision. The applicant is advised to check for open congressionally approved open seasons in which he may elect coverage. 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. 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, U.S. Code, section 1448 governs the Survivor Benefit Plan. a. Sub-paragraph a.1. Name of eligible participants.—The program established by this subchapter shall be known as the Survivor Benefit Plan. The following persons are eligible to participate in the Plan: (A) Persons entitled to retired pay, and (B) Persons who would be eligible for reserve-component retired pay but for the fact that they are under 60 years of age. b. Sub-paragraph a.2. Participants in the plan.—The Plan applies to the following persons, who shall be participants in the Plan: (A) Standard annuity participants.— A person who is eligible to participate in the Plan under paragraph (1)(A) and who is married or has a dependent child when he becomes entitled to retired pay, unless he elects (with his spouse’s concurrence, if required under paragraph (3)) not to participate in the Plan before the first day for which he is eligible for that pay; and (B) Reserve- component annuity participants.— c. Sub-paragraph a.3. Elections.— (A) Spousal consent for certain elections respecting standard annuity. 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, or 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 d. Sub-paragraph a.4. Irrevocability of elections.— (A) Standard annuity.— An election under paragraph (2)(A) is irrevocable if not revoked before the date on which the person first becomes entitled to retired pay. (B) Reserve-component annuity.— An election under paragraph (2)(B) is irrevocable if not revoked before the end of the 90- day period referred to in that paragraph. 2. Periodically, Congress passes laws that establish Open Seasons which allow SBP enrollment or changes. For example, Public Law 97-35, enacted 12 August 1981, established an Open Season from 1 October 1981-30 September 1982. Public 101- 189, enacted 29 November 1989, established an Open Season from 1 October 1991- 30 September 1992. Public Law 101-510, enacted 5 November 1990, changed the Open Season period enacted in Public Law 97-35 to 1 April 1992-31 March 1993. Public 108-375, enacted 28 October 2004, established an Open Season from 1 October 2005-30 September 2006. All of these Open Seasons were extensively publicized in Army Echoes to ensure all retirees were informed of their existence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170014944 2 1