ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


		IN THE CASE OF:  

		BOARD DATE:  21 May 2020

		DOCKET NUMBER:  AR20180011689


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)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)
*	Orders 190-007, Headquarters, U.S. Army Air Defense Artillery Center and 
Fort Bliss, dated 8 July 2008
*	Orders 0341-17, U.S. Army Physical Disability Agency, dated 23 February 2009
*	Orders 335-0009, Headquarters, Fort Bliss, dated 1 December 2009
*	Orders 337-0003, Headquarters, Fort Bliss, dated 1 December 2009
*	Defense Finance and Accounting Service Retiree Account Statement, dated 
11 January 2010
*	DD Form 2656-6 (Survivor Benefit Plan Election Change Certificate), dated 
8 June 2018
*	Decree of Dissolution of Marriage, District Court, , dated 
20 August 2019
*	Letter, dated 6 March 2020
*	DD Form 2656 (Data for Payment of Retired Personnel), dated 6 March 2020

REFERENCES:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of 
military records must be filed within 3 years after discovery of the alleged error or 
injustice.  This provision of law also allows the Army Board for Correction of Military 
Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute 
of limitations if the Board determines it would be in the interest of justice to do so.

2.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the 
separation documents prepared for Soldiers upon retirement, discharge, or release from 
active military service or control of the Army.  It established standardized policy for 
preparation of the DD Form 214.  The purpose of a separation document is to provide 
the individual with documentary evidence of his/her military service.  It is important that 
information entered thereon is complete and accurate.  A DD Form 214 will not be 
issued to personnel being removed from the Temporary Disability Retired List.

3.  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 coverage, if applicable) 
coverage.

4.  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.

FACTS:

1.  The applicant did not file within the 3-year time frame as provided in Title 10, 
U.S. Code, section 1552(b); however, the 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 he received an erroneous SBP debt that was backdated to the 
date of his retirement orders.  His original discharge with severance pay was changed 
after a Physical Disability Board of Review.  He was never provided information or the 
opportunity to decline SBP.  The backdating of his disability retirement created a debt of 
over $22,000.00 for something he did not want and placed him in a significant financial 
crisis.  He tried to decline the SBP after he received the debt.

3.  Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Orders  
190-007, dated 8 July 2008, discharged him by reason of disability with severance pay 
effective 22 August 2008.

4.  His original DD Form 214 shows he was discharged on 22 August 2008 by reason of 
disability with severance pay (combat related).

5.  U.S. Army Physical Disability Agency, Orders 0341-17, dated 23 February 2009, 
placed him on the Temporary Disability Retired List effective 24 August 2008 by reason 
of temporary disability.  These orders further removed him from the Temporary 
Disability Retired List effective 23 February 2009 due to permanent physical disability 
and permanently retired him with a disability rating of 60 percent.

6.  Headquarters, Fort Bliss, Orders 335-0009, dated 1 December 2009, revoked 
Headquarters, Fort Bliss, Orders 90-007, dated 8 July 2008.

7.  Headquarters, Fort Bliss, Orders 337-0003, dated 3 December 2009, retired him 
effective 22 August 2008 by reason of temporary disability and placed him on the 
Temporary Disability Retired List with a disability rating of 60 percent effective 
23 August 2008.  (Note:  this action corrects the effective dates published in U.S. Army 
Physical Disability Agency Orders 0341-17, dated 23 February 2009.)

8.  His original DD Form 214 was voided and he was issued a new DD Form 214 on 
11 February 2010 showing he retired by reason of temporary disability effective 
22 August 2008.

9.  There is no evidence showing he made an SBP election between 23 February 2009 
and 11 January 2010.  There is also no evidence showing his spouse concurred with his 
election to decline SBP coverage.

10.  He provided his Defense Finance and Accounting Service Retiree Account 
Statement effective 11 January 2010 for pay due as of 1 February 2010:

*	his retired pay account was established effective 1 January 2010
*	his spouse only SBP cost of $184.51
*	his SBP annuity base amount of $2,838.66
*	his annuity payable is 55 percent of his annuity base amount, which is $1,561.26

11.  He provided a DD Form 2656-6, dated 8 June 2018, showing in:

	a.  Section II (Current Coverage), block 7 (My Current Coverage is), he marked 
"Spouse Only";

	b.  Section III (Conditions That Trigger Eligibility to Change Coverage), block 8 (I am 
requesting a change in coverage based on), he marked "Divorce"; and

	c.  Section IV (Requested Change to Coverage), block 9 (Place an X in the 
appropriate box to indicate your election), he marked "Suspend Coverage."

12.  The District Court,  Decree of Dissolution of Marriage, dated 
20 August 2019, shows the applicant and M____ were legally separated effective 
21 May 2015 and divorced on 20 August 2019.

13.  He provided a DD Form 2656, dated 6 March 2020, showing in:

	a.  Section IX (SBP Election), block 26e (Beneficiary Category(ies)), he marked "I 
elect coverage for children only" and "I do not have a spouse"; and

	b.  Section IX, block 27 (Level of Coverage), he did not elect a level of coverage.

	c.  The applicant signed a separate statement, concurring with his own election to 
terminate spouse coverage.

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 separation and then retirement due to disability, his automatic enrollment in 
SBP upon retirement and his requested change to SBP (child-only) in 2018, following 
the completion of divorce proceedings.  The Board considered the irrevocable nature of 
SBP elections as established in law.  The Board found insufficient evidence of his 
declination of SBP upon retirement or a signed, notarized statement from his spouse 
concurring with a declination of SBP coverage.  The Board found evidence to show his 
intent to suspend Spouse-only SBP coverage in June 2018 and considered the DD 
Form 2656 dated 3 March 2020 reflecting his request for child-only SBP coverage.  
Based on a preponderance of evidence, the Board determined that his enrollment in 
SBP and the requirement to pay premiums was not in error or unjust.

2.  After reviewing the application and all supporting documents, the Board found that 
relief was not warranted.



BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:XXX	:XXX	:XXX	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or 
injustice.  Therefore, the Board determined the overall merits of this case are insufficient 
as a basis for correction of the records of the individual concerned.
 

	 
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)	AR20180011689


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