ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 15 September 2020 DOCKET NUMBER: AR20190002190 APPLICANT REQUESTS: disenrollment from the Survivor Benefit Plan (SBP) and a refund of all payments previously made. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: ? DD Form 149 (Application for Correction of Military Record) ? Divorce Decree dated 17 December 2007 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 that he was not married when he was automatically enrolled in the SBP. 3. A review of the applicant’s available service records reflects the following: a. On 2 June 1993 he enlisted in the Army Reserve. b. On 17 September 1993 he was ordered to active duty. c. On 27 June 2013 he completed his most recent DD Form 93 (Record of Emergency Data). Item 4a. (Spouse name) is blank; “divorced”. Item 5 (Children) contains the names of 2 dependent children; date of birth (son) 5 June 1994 and (daughter) 12 April 2006. d. On 27 June 2013 he completed pre-separation counseling. Item 9 of his DD Form 2648 (Pre-separation Counseling Checklist) indicates that a spouse was not present. e. On 30 September 2013 (Order 361-1313) he was released from active duty and transferred into the Retired Reserve. Item 19b. of his DD Form 214 (Certificate of Release or Discharge from Active Duty) contains his mother’s name as his nearest relative. f. On 1 October 2013 he was placed on the retired list. 4. The applicant provides his Divorce Decree dated 17 December 2007 reflective of the dissolution of his marriage. The document contains an obligation to provide child support; however, it is void of any life insurance or other annuity requirements. 5. On 2 April 2020 a representative from the Defense Finance and Accounting Services (DFAS) responded to an email inquiry concerning the applicant’s enrollment in the SBP wherein he stated that there was no DD Form 2656 (Data for Payment of Retired Personnel) on file. 6. See applicable regulatory guidance below under REFERENCES. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief is warranted. 2. The Board agreed that the evidence clearly shows the applicant was not married at the time of his retirement and should not have been automatically enrolled in SBP. The Board determined his record should be corrected to show he was not enrolled in SBP at the time of his retirement, and any SBP premiums he has paid should be returned to him. 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 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 showing he was not enrolled in the Survivor Benefit Plan at the time of his retirement and return to him any Survivor Benefit Plan premiums he has paid. 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. Title 10 USC 1448 states that a person who is eligible to participate in the plan under this paragraph and who is married or has a dependent child when he becomes entitled to retired pay, unless he elects with his spouse's concurrence, if required, not to participate in the plan before the first day for which he is eligible for that pay. Title 10, USC, section 1448(a)(4) states that SBP elections are irrevocable if not revoked before the date on which the member first becomes entitled to retired pay. 3. Army Regulation (AR) 600-8-7 (Retirement Services Program) states that all Active Army Soldiers will receive the DA pre-retirement briefing, including a SBP briefing, at least 12 months before their retirement dates or for medical retirements at the start of the medical retirement process. In cases where a Soldier requests to retire in less than 12 months, the Soldier will attend the next group preretirement brief or receive an individual pre-retirement brief from a Retirement Services Officer. 4. Paragraph 5-3 (Maintaining Survivor Benefit Plan Elections after Retirement) states that the Defense Finance and Accounting Services (DFAS) will suspend child SBP coverage when the last child is no longer an eligible beneficiary. Children remain eligible if (1) unmarried, (2) under 18 years of age, (3) at least 18 but under 22 years of age and pursuing a full-time course of study or training in a high school, trade school, technical or vocational institute, junior college, college, university, or comparable recognized educational institution or (4) until death if unmarried and incapable of self-support be- cause of a mental or physical incapacitation that existed at an age while eligible for SBP. A child who is pursuing a full-time course of study or training, whose twenty- second birthday occurs before July 1 or after August 31 of a calendar year, is considered to be 22 years of age on the first day of July after that birthday in order to allow them to complete the normal school year. SBP coverage for fulltime students whose birthdays fall between July 1 and August 31 will end on that birthday. Marriage at any age makes a child ineligible for SBP coverage. Child RCSBP premiums, by law, will continue even when there is no eligible child in order to pay for child coverage already received. 5 Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation. Retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from SBP. No premiums will be refunded to those who opt for disenrollment. //NOTHING FOLLOWS//