ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


		IN THE CASE OF:  

		BOARD DATE:  5 September 2019

		DOCKET NUMBER:  AR20170019089


APPLICANT REQUESTS:

*	correction of his Survivor Benefit Plan (SBP) child coverage election to show no 
coverage
*	waiver of his debt to the Defense Finance and Accounting Service (DFAS)

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)
*	State of Vermont Office of the Adjutant General Orders 104-008, dated 14 April 
2015
*	U.S. Army Physical Disability Agency Order D 090-36, dated 31 March 2015
*	DD Form 2656 (Data for Payment of Retired Personnel), dated 5 May 2015

FACTS:

1.  The applicant states he elected not to participate in SBP coverage when he 
completed his DD Form 2656 on 5 May 2015.  He was not properly counseled and 
made aware that signing the form on the effective date of his retirement would make the 
election void.  He was never informed the form had to be signed prior to the date of his 
retirement.

2.  The applicant enlisted in the Army National Guard on 27 September 2006.

3.  On 9 March 2015, a physical evaluation board (PEB) found him physically unfit and 
recommended a 50-percent disability rating and permanent disability retirement.

4.  On 10 May 2015, his PEB Liaison Officer briefed him on the findings and 
recommendations of the PEB.

5.  On 16 May 2015, he concurred with the findings and recommendations of the PEB, 
waived a formal hearing of his case, and did not request reconsideration of his 
Department of Veterans Affairs (VA) ratings.
6.  On 31 March 2015, the PEB findings and recommendations were approved.

7.  U.S. Army Physical Disability Agency memorandum, dated 31 March 2015, subject:  
Permanent Physical Disability Retirement, advised the applicant of the findings and 
recommendation and instructed him to complete a DD Form 2656 to activate his retired 
pay account.  He was also advised to immediately contact his nearest installation 
Retirement Services Officer for assistance.  The Retirement Services Officer would 
provide retirement and SBP counselling and assist in completing the DD Form 2656.  
He was encouraged to contact the VA in his area to determine his available benefits.

8.  State of Vermont Office of the Adjutant General Orders 104-008, dated 14 April 
2015, released him from assignment and duty because of physical disability effective 
4 May 2015 and placed him on the Retired List effective 5 May 2015.

9.  The DD Form 2656, dated 5 May 2015, shows:

	a.  he indicated he was single;

	b.  he listed X____ X. X____ as his son and recorded his son's date of birth as 
XX December 2009;

	c.  he elected not to participate in SBP;

	d.  he acknowledged he had been counseled about terminating SBP; and

	e.  X____ X. X____, Joint Force Headquarters, Vermont Army National Guard, 
witnessed him sign the form.

10.  On 25 March 2019, a Defense Finance and Accounting Service official stated their 
records show the applicant has SBP child coverage and noted his election form for no 
beneficiary was dated "on" his retirement date, which is considered a late submission.  
Since the applicant has the full VA waiver (no retired pay – only receipt of VA 
compensation), he is required to remit his payment of $11.46 per month by mail.  The 
applicant currently has an SBP direct remittance balance (debt) of $561.36.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined 
relief was warranted.  Based upon the fact that if the applicant has submitted his DD 
Form 2656 one day prior to the date depicted on the form, the Board concluded that not 
allowing him to elect not to participate in SBP would create an injustice.  Therefore, the 
Board recommended granting the applicant’s request. 

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 the evidence presented is 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 the applicant 
elected not to participate in SBP on 4 May 2015 and that the DFAS debt created by the 
current SBP coverage be waived.
 
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, the SBP, enacted 21 September 1972, 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.

2.  Public Law 95-397, the Reserve Component SBP, enacted 30 September 1978, 
provided a way for those who qualified for Reserve retirement but were not yet age 60 
to provide an annuity for their survivors should they die before reaching age 60.  Three 
options are available:  (A) elect to decline enrollment and choose at age 60 whether to 
start SBP participation, (B) elect that a beneficiary receive an annuity if they die before 
age 60 but delay payment of it until the date of the member's 60th birthday, or (C) elect 
that a beneficiary receive an annuity immediately upon their death if before age 60.  A 
member must make the election within 90 days of receiving notification of eligibility to 
receive retired pay at age 60.

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.
ABCMR Record of Proceedings (cont)	AR20170019089


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