IN THE CASE OF: BOARD DATE: 31 July 2020 DOCKET NUMBER: AR20180002382 APPLICANT REQUESTS: correction of his DD Form 2656 (Data for Payment of Retired Personnel) to show he elected not to participate in the Survivor Benefit Plan (SBP). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under Provisions of Title 10, U.S. Code, Section 1552) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Letter, Army Review Boards Agency, dated 13 September 2017 * Orders 300-0027, Headquarters, National Training Center and Fort Irwin, Fort Irwin, CA, dated 27 October 2017 * Orders 300-0028, Headquarters, National Training Center and Fort Irwin, Fort Irwin, CA, dated 27 October 2017 * DD Form 215 (Correction to DD Form 214), dated 2 November 2017 * DD Forms 2656, dated 3 December 2017 and undated 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 Public Law 92-425, enacted 21 September 1972, repealed the Retired Serviceman's Family Protection Plan and established the SBP.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 serving 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. 2. Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse's written concurrence for a retiring member's election that provided less than maximum spouse coverage. 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. 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. No premiums will be refunded to those who opt to disenroll. 4. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation), effective 8 March 2006 through 20 March 2012, prescribed Army policy and responsibilities for the disability evaluation and disposition of Soldiers who may be unfit to perform their military duties due to physical disability. Paragraph 4-24b (Disposition by U.S. Army Human Resources Command – Final Disposition) stated based upon the final decision of the U.S. Army Physical Disability Agency, the U.S. Army Human Resources Command will issue retirement orders or other disposition as follows: * permanent retirement for physical disability * placement on the Temporary Disability Retired List * separation for physical disability with severance pay * separation for physical disability without severance pay FACTS: 1. The applicant states he was recently retired in September 2017 through the Physical Disability Board of Review after being medically separated for 10 years. While completing the DD Form 2656 to apply for retirement benefits, he opted into the SBP. He was not informed prior to completion of the DA Form 2656 that SBP premium payments would be retroactively collected for the entire 10 years. Retroactive collection without notification of over $9,000.00 of SBP premium payments removes any economic benefit of the plan. He would never have opted into the SBP had he been so informed as he has extensive private life insurance and the additional coverage is mostly unnecessary. 2. Headquarters, National Training Center and Fort Irwin, Orders 159-0032, dated 8 June 2007, discharged him by reason of disability with severance pay effective 19 July 2007 based on 10-percent disability. 3. He was honorably discharged on 19 July 2007. Item 18 (Remarks) of his DD Form 214 contains the entry "Disability Severance Pay -- $54934.20." Item 28 (Narrative Reason for Separation) shows "Disability, Severance Pay." 4. On 13 September 2017, the Army Review Boards Agency notified the applicant the agency accepted the recommendation of the Department of Defense Physical Disability Board of Review to recharacterize his separation as disability retirement with a combined disability rating of 30 percent effective the date of his medical separation for disability with severance pay (19 July 2007). 5. Headquarters, National Training Center and Fort Irwin, Orders 300-0028, dated 27 October 2017, retired him by reason of permanent physical disability effective 19 July 2007 and placed him on the Retired List effective 20 July 2007. 6. His DD Form 2656 (Data for Payment of Retired Personnel), dated 3 December 2017, shows in: * item 26 (Beneficiary Category(ies) – he checked "I Elect Coverage for Spouse and Child(ren)" * item 27 (Level of Coverage) – he checked "I Elect Coverage Based on Full Gross Pay" 7. On 2 November 2017, he was issued a DD Form 215, correcting his DD Form 214 for the period ending 19 July 2007 by deleting "Disability Severance Pay -- $54934.20" and changing the narrative reason for separation to read "Disability, Permanent." 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. The Board finds insufficient evidence of the spouse’s concurrence with the applicant’s request for declination of SBP at retirement. The record is void of and the applicant did not provide a signed, notarized spousal concurrence reflecting that the spouse understands she is entitled to SBP, does not want it, and knowingly and voluntarily waives her right to it. It is the spouse’s – not the applicant’s – future annuity that would be terminated by favorable ABCMR action. 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. ADMINISTRATIVE NOTE(S): not applicable. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180002382 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1