ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 March 2020 DOCKET NUMBER: AR20180003222 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) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 2656-8 (SBP – Automatic Coverage Fact Sheet), dated 20 June 2015 * Letter, Defense Finance and Accounting Service (DFAS), dated 16 February 2018 * DD Form 2656-2 (SBP Termination Request), dated 13 February 2019 * Letter, DFAS, dated 9 December 2019 REFERENCES: 1. Public Law 92-425, the SBP, enacted 21 September 1972, states an election to decline to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse (or child only coverage, if applicable) coverage. 2. 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 (cancellation or termination from the SBP begins in the 25th month through the 36th month or the third year of retirement). 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. 3. The DFAS website states: a. retirees who meet one of the following two criteria are eligible to withdraw from SBP: (1) the retiree has had a service-connected disability rated by the Department of Veterans Affairs (VA) as totally disabled for a continuous period of 10 or more years; or (2) the retiree has had a total disability rating from the VA for at least 5 continuous years immediately following the last date of active duty. b. Withdrawal from SBP coverage due to a qualifying VA disability, sometimes referred to as discontinuation based on disability, is different than terminating SBP coverage between the 25th and 36th month of retirement. FACTS: 1. The applicant states he did not sign up for the SBP. Any changes to his fixed income will put his family in financial trouble. He initially was told he was not enrolled in the SBP and believed that until he recently received a letter. He was told he was automatically enrolled because his paperwork was submitted late. He was medically retired; therefore, the Army handled all of his paperwork. 2. His DD Form 214 shows he retired by reason of temporary disability effective 31 January 2014. 3. He provided his DD Form 2656-8, dated 20 June 2015, showing he was married and had a dependent child. The fact sheet states: Public Law 92-426, effective September 21, 1972 provides that every member having a spouse and/or child(ren), who retired/transfers (Reserve) on or after that date is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer. On the date your retired/retainer pay account was established, one of two situations occurred: either we received no SBP election, or we received an invalid SBP election. Therefore, we established your retired pay account with SBP coverage at the maximum rate, based on either Spouse-only coverage or coverage based on dependents listed on your invalid SBP election. 4. U.S. Army Physical Disability Agency Orders D231-40, dated 19 August 2015, removed him from the Temporary Disability Retired List effective 19 August 2015 by reason of permanent physical disability and placed him on the Retired List effective 20 August 2015. 5. He provided a letter from DFAS, dated 16 February 2018, informing him that DFAS would start deducting SBP premiums from his combat-related special compensation pay in April 2018. He would continue to receive an SBP premium notification that will show DFAS deducted the monthly premium from his combat-related special compensation pay. He was still responsible for paying the amount due from prior months and interest charges. As of 31 January 2018, his total amount due was $6,587.82. 6. He provided his DD Form 2656-2, dated 13 February 2019, showing he and his spouse requested termination of SBP coverage. 7. The DFAS Retired and Annuitant Pay Section provided a letter, dated 20 February 2019, in response to the applicant's request termination of SBP coverage showing DFAS advised him that, as stated under instruction 1 on the DD Form 2656, he had a 1-year window to withdraw from the SBP, starting with the 25th month through the 36th month after his first eligibility to receive retired pay. Since he had been retired for 60 months, he was no longer eligible to withdraw. 8. He provided a DFAS letter, dated 9 December 2019, notifying him that his request to withdraw from the SBP could not be processed because the VA has indicated he has not been rated totally disabled for 5 continuous years since discharge or release from active duty, if so rated less than 10 years. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, the date of his placement on the TDRL and subsequently on the PDRL, the date of his DD Form 2656-8 and the response from DFAS showing an SBP account was established in his name due to a missing or invalid SBP election. The Board considered the notification from DFAS in response to his request for termination of SBP coverage with his spouse’s concurrence and instructions for how he could withdraw between months 25 and 36 after receiving retired pay. Based on a preponderance of evidence, the Board determined that denial of the applicant’s request to terminate SBP was unjust and that a correction is required. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. 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 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 that the applicant submitted a properly constructed request to decline SBP coverage, with his spouse’s concurrence, prior to the date of his retirement; - that his request was accepted and processed by the appropriate authority, and; - that he be refunded any payments collected for SBP premiums, as a result of this correction. 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) AR20180003222 4 1