IN THE CASE OF: BOARD DATE: 9 March 2020 DOCKET NUMBER: AR20180009639 APPLICANT REQUESTS: Correction of his DD Form 2656 (Data for Payment of Retired Personnel) to show he declined Survivor Benefit Plan (SBP) coverage and to waive all charges incurred. 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), dated 6 June 2018 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 2 October 2004 * DD Form 215 (Correction to the DD Form 214), issued on 16 August 2016 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. 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 the Defense Finance and Accounting Service (DFAS) told him he is not eligible to receive SBP. 3. The applicant, with prior Army National Guard service, was called to active duty on 15 March 2003 and was discharged with disability severance pay on 2 October 2004. 4. A DD Form 215, issued on 16 August 2016, amended his DD Form 214 to show he was retired due to permanent disability. 5. An email to the staff of the ABCMR from DFAS indicates the applicant was placed in an auto status at retirement as his DD Form 2656 was incomplete. 6. DFAS provided a copy of a DD Form 2656, dated 31 August 2016, which shows the applicant indicated in the spouse only SPB coverage at item 26a that he DID have dependent children; both he and his wife signed the document. 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, his disability separation and subsequent medical retirement, and the incomplete DD form 2656 and his auto-enrollment in SBP. The Board considered the DFAS email and his and his spouse’s signature on the DD Form 2656. A Board considered the circumstances of his medical retirement and a corresponding required SBP election. The Board majority found sufficient evidence to support his request; one member did not find sufficient evidence to support declination of SBP with his spouse’s concurrence. Based on a preponderance of evidence, the Board majority determined that a correction to his record was appropriate to correct and injustice. 2. After reviewing the application and all supporting documents, the Board majority 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 amending the applicant’s DD Form 2656 dated 31 August 2016 to show in Section IX (Survivor Benefit Plan (SBP) Election) item 26 that the applicant selected “X” g. “I elect not to participate in SBP” and that his spouse concurred with the election. 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. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have his retired pay reduced to provide for an annuity after death to surviving dependents. The election made by the member was irrevocable. 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. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180009639 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180009639 4 ABCMR Record of Proceedings (cont) AR20180009639 3