ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 July 2020 DOCKET NUMBER: AR20180006045 APPLICANT REQUESTS: in effect, correction of his DD Form 2656 (Data for Payment of Retired Personnel) to show he declined the 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) * Spouse's letter, dated 16 March 2018 REFERENCES: 1. 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 3rd 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. 2. The Defense Finance and Accounting Service website provides guidance for changing or stopping SBP coverage. A retired service member is free to cancel or terminate his or her SBP election beginning in the 25th month through the 36th month (or the third year) of retirement. As with declining at retirement, spousal concurrence is required. After termination, SBP participation may never be resumed. A DD Form 2656-2 (SBP Termination Request) is used to voluntarily discontinue participation in the SBP. The completed form must be mailed or faxed to the Defense Finance and Accounting Service, Attention: Retired and Annuitant Pay Section, 8899 E. 56th Street, Indianapolis, IN 46249-1200. After termination, SBP participation may never be resumed. FACTS: 1. The applicant states he and his wife previously elected not to participate in the SBP. His wife received a letter that was confusing to her. She thought she had to deny the paperwork, thinking if she agreed, it would place them in the SBP. She declined the paperwork, thinking she was declining enrollment in the SBP. 2. On 13 December 2017, the applicant received SBP counseling. He certified that he previously received SBP counseling and understood: a. If he elected less than the maximum spouse SBP coverage allowed by law, he required his spouse's concurrence. Spouse concurrence must be signed on or after the date he signed and prior to the date he is placed on the Retired List to be valid. b. His SBP election is generally irrevocable, but he can terminate all SBP coverage between the 25th and 36th month following his retirement with my spouse's concurrence. There are no refund of premiums for coverage he already received and he will be barred from future SBP participation. 3. The applicant's DD Form 2656 (Data for Payment of Retired Personnel), dated 13 December 2017, shows in: a. Section IX (SBP Election), block 26g (Beneficiary Category(ies)), he elected not to participate in the SBP; b. Section IX, block 27 (Level of Coverage), he did not elect a level of coverage; c. Section XI (Certification), he signed the form on 13 December 2017; and d. Section XII (SPB Spouse Concurrence), his spouse did not sign the form. 4. The SBP Spouse Election Concurrence Statement shows the applicant's spouse marked: "I non-concur with my spouse's SBP election, Declined SBP coverage. I understand that my non-concurrence will result in my spouse receiving an automatic Spouse SBP election based on full retired pay." She signed the form on 3 January 2018. 5. The applicant honorably retired by reason of temporary disability on 18 January 2018. 6. The applicant provided a letter from his spouse, dated 16 March 2018 and signed on 20 March 2018, wherein she stated she signed paperwork in January 2018 stating she did want to be enrolled in the SBP, which was a mistake. When she signed the paperwork, she was confused as to what she was signing. She thought she was declining to enroll in the SBP. She signed the wrong box unknowingly until she received a letter in the mail saying she and her husband owed money. She is declining the SBP. She did not want it then and she still does not want it. She is sorry for the misunderstanding. 7. The applicant's window for termination of the SBP begins on 18 January 2020 and ends on 18 January 2021. BOARD DISCUSSION: After reviewing the application and all supporting evidence, the Board found that full relief was warranted. The Board found the applicant’s spouse statement to be credible for the following reasons: 1. The applicant’s spouse was at a remote location from the service member and did not benefit from the same retirement briefing as her husband. 2. The wording on the “Spouse SBP Election Concurrence Statement” is confusing, as it requires to concur or non-concur “with my spouse’s SBP election, Declined SBP coverage.” The Board found this statement, that included double negatives, to be confusing. 3. The spouse submitted a second notarized affidavit stating she was confused and never intended to contravene her husband’s declination of SBP coverage. The second affidavit was dated only two and a half months after the first notarized affidavit. The Board agreed that a preponderance of the evidence indicates that the applicant and his spouse intended to decline the SBP coverage. 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 that the evidence presented was 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’s spouse properly selected the option to concur with her spouse’s declination of SBP coverage, dated 3 January 2018, and her election was received and processed in a timely manner by the appropriate DFAS office. Such relief should result in the repayment of any previously paid SBP premiums. 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) AR20180006045 4 1