ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 November 2020 DOCKET NUMBER: AR20180010814 APPLICANT REQUESTS: in effect, disenrollment from the Survivor Benefit Plan (SBP). 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) * SBP Premium Bill for May 2018 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 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. Title 10, U.S. Code, section 1448, requires spousal concurrence in any SBP election not to participate in SBP, to provide an annuity for a spouse at less than the maximum level, or to provide an annuity for a dependent child but not for the person's spouse. 4. The Defense Finance and Accounting Service website addresses the SBP and states: a. Retirees who meet one of the following two criteria are eligible to withdraw from SBP: 1 (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 was not given an option to decline the SBP when he retired because his wife was not available. His wife was out of state and he was informed that information would be mailed to her regarding this. He was told he had to sign if she wasn't present and that is what he did. Recently he and his wife tried to cancel the SBP; they do not want this benefit. It is causing their family additional hardships because he can't afford the plan. It's putting them further and further in debt. He was a mechanic in the Army and this is his only skill set. He is no longer able to do maintenance work due to his disabilities. It has been a struggle to find work and the debts are stacking up. 2. Headquarters, U.S. Army North (Fifth Army), Orders 354-1115, dated 20 December 2017, retired him because of physical disability resulting from a combat injury effective 27 February 2018 and placed him on the Temporary Disability Retired List effective 28 February 2018. He was assigned a disability rating of 80 percent. 3. His DD Form 2656 (Data for Payment of Retired Personnel), dated 28 February 2018, shows in: a. Section IX (SBP Election), block 26 (Beneficiary Category(ies)), he elected coverage for spouse and children; and b. Section IX, block 27 (Level of Coverage), he elected coverage based on full gross pay. 4. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he retired by reason of temporary disability (enhanced) on. 5. He provided his SBP Premium Bill for his military retired pay for May 2018 from the Defense Finance and Accounting Service, showing he owed $412.38 for: * amount past due – $205.69 * interest on past due amount – $1.00 * current month's cost – $205.69 6. The applicant is eligible to disenroll from the SBP with spousal concurrence between March 2020 and February 2021 by submitting a DD Form 2656-2 (SBP Termination Request) to the Defense and Finance Accounting Service. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, regulatory guidance and public law. The Board considered the applicant’s statement and his military service record. The Board determined the applicant took steps almost immediately to get this problem fixed, which seems to indicate he has acted in good faith. Furthermore, the Board agreed that an injustice has occurred, and recommends that the applicant’s records be corrected to reflect that he declined SBP coverage at that time of his retirement (2017), that his spouse concurred and that the debt for the unpaid premiums should therefore be expunged. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X 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, with submission of properly documented spousal concurrence, he declined the Survivor Benefit Plan (SBP) on 27 February 2018 and his 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. X 1/13/2021 CHAIRPERSON 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//