ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: DOCKET NUMBER: AR20180015757 APPLICANT REQUESTS: in effect, correction of his DD Form 2656 (Data for Payment of Retired Personnel) to show he declined Survivor Benefit Plan (SBP) spouse coverage. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Forms 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552), dated 24 October 2018 and 18 December 2018. REFERENCES: 1. Title 10, U.S. Code, section 1448, provides that a married person who is eligible to provide a standard SBP annuity may not – without the concurrence of the person's spouse – elect not to participate in the SBP, provide an annuity for the person's spouse at less than the maximum level, or provide an annuity for a dependent child but not for the person's spouse. a. An election is irrevocable if not revoked before the date on which the member first becomes entitled to retired pay. b. A participant in the SBP may elect to discontinue participation in the SBP at any time during the 1-year period beginning on the second anniversary of the date on which payment of retired pay to the participant commences. A married participant may not make an election to discontinue without the concurrence of the participant's spouse. The concurrence of a spouse shall be made in written form and shall contain such information as may be required under regulations prescribed by the Secretary of Defense. 2. Department of Defense Instruction 1332.42 (Survivor Annuity Program Administration), dated 23 June 2009, enclosure 3, paragraph 7i, states a member may discontinue SBP participation upon notifying the Secretary concerned that the Department of Veterans Affairs has granted the member a service-connected, totally disabling (100 percent) rating and the member has suffered from that disability while so rated continuously for 10 or more years or for at least 5 years from the date of last discharge or release from active duty. Such an election to discontinue coverage shall be in writing and is subject to the written consent of the beneficiary. 3. Public Law 92-425, enacted 21 September 1972, repealed the Retired Serviceman's Family Protection Plan and established the SBP. The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election, once made, was irrevocable except in certain circumstances. It declared a 12-month open enrollment season for those members who retired prior to enactment of the law. FACTS: 1. The applicant states there was a misunderstanding by a lot of people regarding the SBP. The expense has created a financial hardship for his family. 2. His DA Form 3713 (Data for Retired Pay), dated 28 October 1985, shows in: * block 22 (Voluntary Retirement Section) – 20 years and 18 days credited for retirement or retired pay * block 31 (Retired Servicemember's Family Protection Plan) – is marked not applicable * block 36 (Remarks) – will attain 20 years of active service effective 10 February 1986 3. His DA Form 2-1 (Personnel Qualification Record – Part II), reviewed on 5 November 1985, shows he had no spouse and two dependent children. 4. His records contain no documents showing he made an SBP election. He retired on 28 February 1986. 5. The letter from the Defense Finance and Accounting Service (DFAS) to his Congressional representative, dated 8 December 2018, states their records show: a. On 1 February 2018, the applicant submitted an SBP Election Change Certificate and a marriage certificate to add his spouse. b. On 23 September 2018, 1 year from the date of the marriage, DFAS changed his SBP account from no beneficiary to spouse coverage. c. On 1 November 2018, the first payment of $104.96 was deducted from the applicant's retired pay account. d. On 6 November 2018, DFAS received a request from the applicant to cancel SBP coverage due to hardship. e. SBP is an irrevocable election. The applicant can only cancel SBP coverage in the event of death or divorce. 6. A copy of his SBP Election Change Certificate was not provided. 7. An email from the applicant, dated 17 June 2019, states he does not have a totally-disabling (100 percent) rating from the Department of Veterans Affairs. 8. On 22 October 2019, a member of the ABCMR contacted the applicant by email and requested a signed and notarized statement from his spouse indicating she knows she's entitled to SBP coverage, she does not want SBP coverage, and she knowingly and voluntarily waives her right to SBP coverage. He was advised to respond within 10 days, or the Board would be obligated to consider his application without the requested documentation. A response from the applicant was not received. 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 initial election to decline SPB, his request to add his spouse as beneficiary in February 2018 and his request to withdraw his participation based on financial hardship. The Board found the applicant was contacted by the ABCMR staff to determine if the applicant was rated as totally disabled by the VA or if his spouse intended to provide a signed and notarized statement waiving her right to SBP coverage. The applicant provided a statement saying he was not totally disabled and the Board received no statement from his spouse. As a result, the Board determined that the applicant did not meet requirements in the law to now decline coverage; he has made an irrevocable election. Based on a preponderance of evidence, the Board determined that the applicant’s enrollment in SBP 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 :XX 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) AR20180015757 4 1