ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  9 December 2019

	DOCKET NUMBER:  AR20170019597


APPLICANT REQUESTS:  correction of his record to show termination of Survivor 
Benefit Plan (SBP) coverage and credit of all past or current payments.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 2656 (Data for Payment of Retired Personnel)
*	Defense Finance and Accounting Service (DFAS) - MyPay Statement 

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United 
States Code (USC), section 1552(b); however, the Army Board for Correction of Military 
Records (ABCMR) conducted a substantive review of this case and determined it is in 
the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states in 2010, he elected not to participate in SBP, however, he is 
paying for coverage of his spouse.  He discovered the error and requests 
reimbursement of all monies paid. 

3.  The applicant provides the above referenced documents to include a Defense 
Finance and Accounting Service (DFAS) - MyPay Statement, dated 23 October 2017, 
which shows him paying for SBP coverage for his spouse in the amount of $165.56 and 
Reserve Component SBP cost in the amount of $54.45.

4.  A review of the applicant’s service records show:

	a.  He was appointed as a Reserve commissioned officer in the U.S. Army Reserve 
(USAR) and executed an oath of office on 11 July 1979.

	b.  He received his Notification of Eligibility for Retired Pay at Age 60 (20-Year 
Letter) on 11 August 1999.

	c.  On 27 October 1999, he completed DD Form 1883 (Survivor Benefit Plan 
Election Certificate), which shows:

*	Item 8 (Type of Coverage): Spouse only
*	Item 9a (Full Amount or Reduced Portion of Retired Pay):  Full
*	Item 9c (Reserves Eligible for Retired Pay upon Application at Age 60): 
Option C, immediate coverage
*	Item 10 (Spouse): J_S_
*	Item 14 (Date or Marriage):  22 December 1979

	d.  Orders Number, dated 8 January 2008, shows the applicant was ordered to 
active duty for deployment IN SUPPORT OF (ISO) OPERATION IRAQI FREEDOM.

	e.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) for the 
period ending on 14 April 2009, shows he was honorably released from active duty for 
completion of required active service and returned to his USAR unit.  

	f.  Orders Number , dated 15 June 2009, shows effective 1 August 2009, he was 
assigned to the Retired Reserve.

	g. The DD Form 2656 (Data for Payment of Retired Personnel) was dated and 
signed by the applicant and certifying representative on 21 December 2010, which 
shows:

*	Section V (Designation of Beneficiaries for Unpaid Retired Pay):  blank
*	Item 22a (Spouse): J_S_
*	Item 22c (Date of Marriage):  22 December 1979
*	Item 26g (Beneficiary Categories): I elect not to participate in SBP
*	Item 27a (Level of Coverage): no election
*	Item 32 (Spouse):  J_S_ signed and dated on 21 December 2010
*	Item 33 (Notary/Witness):  M_K_ signed and dated on 21 December 2010

4.  By law, a person who is married when he becomes entitled to retired pay is an SBP 
participant to the maximum extent authorized unless he elects, with his spouse’s 
concurrence, not to participate in the SBP or participate at a reduced level before the 
first day for which he is eligible for that pay.

5.  Soldiers may, with spousal concurrence, discontinue SBP coverage at any time 
during the one-year period beginning on the second anniversary of the date on which 
payment of retired pay began.  No premiums are refunded.




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 his 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 after his 62nd birthday, 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” within the 25th month of 
automatically being enrolled in SBP coverage, with proper spousal concurrence, and his 
election was received and processed in a timely manner by the appropriate HRC and 
DFAS office 4 June 2012.  Such relief should result in the applicant receiving any 
premiums already paid from the date of his 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.  Title 10, USC, section 1552(b), provides that applications for correction of military 
records must be filed within three years after discovery of the alleged error or injustice.  
This provision of law also allows the ABCMR to excuse an applicant's failure to timely 
file within the three-year statute of limitations if the ABCMR determines it would be in 
the interest of justice to do so.

2.  Title 10, USC, section 1448, addresses the application of the Survivor Benefit Plan 
(SBP) and Reserve Component Survivor Benefit Plan (RCSBP).  It states, in pertinent 
part:

	a.  Eligible participants include persons entitled to retired pay (standard annuity 
participants) and persons who would be eligible for reserve component retired pay but 
for the fact that they are under 60 years of age (reserve component annuity 
participants).

	b.  A married person who is entitled to retired pay shall be a participant unless he 
elects (with his spouse’s concurrence) not to participate in the Plan before the first day 
for which he is eligible for that pay.

	c.  A 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
*	to provide an annuity for the person’s spouse at less than the maximum level 
*	to provide an annuity for a dependent child but not for the person’s spouse

3.  Title 10 USC, section 1448a, states, in pertinent part, a participant in the Plan may 
elect to discontinue participation in the Plan at any time during the one-year period 
beginning on the second anniversary of the date on which payment of retired pay to the 
participant commences.  A married participant may not make such an election without 
the concurrence of the participant’s spouse.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170019597

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