IN THE CASE OF: BOARD DATE: 23 April 2020 DOCKET NUMBER: AR20180015831 APPLICANT REQUESTS: correction of her records to show she never elected Survivor Benefit Plan (SBP) coverage. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States 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: a. When she was counseled upon leaving the Army, she was never presented the option to accept or decline to participate in the SBP. She was recently informed that this document would have also been presented to her spouse as part of the decision process. He has no recollection of being presented anything or being consulted on this decision. b. She was informed that she has been automatically enrolled in the SBP. She does not want to participate in the SBP. 3. The applicant enlisted in the Regular Army on 11 January 2010. 4. On 31 October 2013, an Informal Physical Evaluation Board (PEB) convened and found the applicant unfit. The PEB recommended a rating of 40 percent and that her disposition be placed on the Temporary Disability Retired List (TDRL) with a reexamination during April 2015. 5. On 25 November 2013, she concurred with the PEB findings and waived a formal hearing of her case. 6. Headquarters, U.S. Army Garrison, Fort Carson, CO Orders 339-0026, dated 5 December 2013, reassigned the applicant from her unit to the Fort Carson, CO transition company for separation processing effective 26 February 2014. The additional instructions of the orders specify in the first line that she was required to attend a retirement and SBP briefing held at the Freedom Performing Arts Center, Building 1129 at 0800 on the 2nd and 3rd Wednesday of every month and encouraged her to bring her spouse to this briefing. 7. Her DD Form 214 shows she was retired on 26 February 2014, due to temporary disability (enhanced), after 4 years, 1 month, and 16 days of net active duty. 8. Her records do not contain a signed DD Form 2656 (Data for Payment of Retired Personnel) wherein she elected or declined SBP coverage for her spouse. There is likewise no evidence of record of her husband’s written concurrence with declination of initial enrollment or later disenrollment in the SBP. 9. On 1 September 2015, the applicant was transferred from the Temporary Disability Retired List (TDRL) to the Permanent Disability Retired List (PDRL). 10. Email correspondence with officials at the Defense Finance and Accounting Services (DFAS) confirms there is no SBP election on file for the applicant and that she has been in SBP automatic enrollment status since her retirement on 27 February 2014. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Public law provides a suspense for changing SBP election after retired pay is started. There is no evidence the applicant’s husband concurred with her election to decline SBP. The Board cannot assume he agreed to the SBP election. The Board determined evidence presented does not demonstrate the existence of a probable error or injustice. 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. REFERENCES: 1. Title 10, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (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 could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. The election must be made prior to the effective date of retirement or else coverage automatically defaults to spouse coverage, if applicable. 3. Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse's written concurrence for a retiring member's election that provides less than the maximum spouse 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 the SBP. The spouse's concurrence is required. No premiums will be refunded to those who opt to disenroll. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180015831 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1