ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


		IN THE CASE OF:  

		BOARD DATE:  10 March 2020

		DOCKET NUMBER:  AR20180008835


APPLICANT REQUESTS:  disenrollment from the Survivor Benefit Plan (SBP) and 
cancellation of his debt.

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)
*	Superior Court of Final Judgment of Divorce, dated 23 February 
2015
*	Email, Army SBP Counselor, dated 14 May 2018
*	Electronic Finance Documents

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 coverage automatically defaults to full spouse (or child only, if applicable) coverage.

2.  Public Law 98-94, enacted 24 September 1983, established former spouse coverage 
for retired members.

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 (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.

4.  Title 10, U.S. Code, section 1448(b)(3), permits a person to elect to provide an 
annuity to a former spouse.  Any such election must be written, signed by the person 
making the election, and received by the Secretary concerned within 1 year after the 
date of the decree of divorce.  The member must disclose whether the election is being 
made pursuant to the requirements of a court order or pursuant to a written agreement 
previously entered into voluntarily by the member as part of a proceeding of divorce.

FACTS:

1.  The applicant states the Defense Finance and Accounting Service (DFAS) 
automatically charged him for the SBP.  He was not married when he retired from the 
military.

2.  The applicant provided his divorce decree, dated 23 February 2015, showing he 
divorced on 23 February 2015.  The court found that neither the applicant (plaintiff) nor 
the defendant made any claim to any retirement plan of the other party.  There was no 
evidence supplied by either the applicant (plaintiff) or defendant that there was interest 
in any retirement plan.  The applicant (plaintiff) will have sole and exclusive ownership 
of any military retirement plan in which he is a participant.

3.  The applicant’s official military personnel record and DFAS are void of a 
DD Form 2656 (Data for Payment of Retired Personnel) indicating an SBP election.

4.  The applicant’s National Guard Bureau Form 22 (National Guard Report of 
Separation and Record of Service) shows he was placed on the Permanent Disability 
Retired List effective 19 October 2017.

5.  The applicant provided an email from the Army SBP Counselor at Fort Sill, OK, to 
DFAS, dated 14 May 2018, wherein she states the applicant was given an automatic 
election for SBP; however, he was divorced prior to his retirement.  The applicant 
requests correction of his SBP election to "elected not to enroll" and cancellation of any 
associated debt.

6.  The applicant provided finance records that show:

*	he retired on 19 October 2017
*	his current SBP election as "Auto" as of 19 October 2017
*	no former spouse election or date of divorce
*	the spouse cost is $112.97 a month and the annuity base amount is $1,738.00



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 evidence of his divorce and his marital status at the time of his retirement.  
The Board considered the statement from the SBP counselor and the applicant’s auto 
enrollment in SBP.  Based on a preponderance of evidence, the Board determined that 
the applicant’s enrollment in SBP was in error and a correction to reflect his declination 
was appropriate.

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 to reflect:

-	The applicant elected to decline SBP prior to the date of his retirement;
-	His election was accepted and processed by an appropriate authority, and; 
-	That as a result of this correction, he be refunded any premiums collected 
since his receipt of retired pay..

 

	 
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.


//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20180008835


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