ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 6 October 2020 DOCKET NUMBER: AR20190002798 APPLICANT REQUESTS: termination of his participation in the Survivor Benefit Plan (SBP) and refund of premiums paid to date. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: two DD Forms 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, section 1552 (b); however, the Army Board for Correction of Military Records 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, in his two applications, states: a. He is requesting all garnishments be stopped on his Combat Related Special Compensation check and his money that has been taken from him and his family be refunded. It is hard enough to make it as it is, so he asks to stop money being taken from his account for something he did not sign up for. He and his family depend on every dime. He did not sign up for a survivor’s claim. b. He requests the Board correct his records. He did not sign up for SBP but the Army is withholding funds from his check. His family depends on the money. Bottom line, the U.S. Army is stealing from his family. This error should not be hard to correct. He did not sign up for SBP, so he asks that the money stop being taken from him and he requests a refund of what has been taken to date. 3. The applicant's service records contain the following documents for the Board's consideration: a. A DA Form 199 (Physical Evaluation Board Proceedings), dated 12 November 2010, which shows the applicant was found unfit for duty with a recommended percentage of 70 for traumatic brain injury, 50 percent for post-traumatic stress disorder, 50 percent for migraines, 40 percent for limited motion in his arms, and 10 percent for degenerative arthritis. b. Orders 074-881, published by Boone National Guard Center, dated 14 March 2012, which shows the applicant was discharged from the Army National Guard and honorably transferred to the Retired Reserve, effective 20 March 2012. He had 100% disability and his disability resulted from a combat related injury. c. An NGB Form 22 (Report of Separation and Record of Service), which shows the applicant was transferred to the Retired Reserve effective 20 March 2012 for being placed on the permanent disability retired list. 4. The applicant's service records are void of any documentation regarding SBP. 5. The applicant did not provide any additional documents for the Board's consideration. 6. The analyst of record contacted the Defense Finance and Accounting Service (DFAS). DFAS stated the applicant was auto-enrolled in the SBP effective 21 March 2012. 7. See applicable references below. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the requested relief is not warranted. 2. The Board noted the applicant was auto-enrolled in the SBP effective the date of his retirement. Auto-enrollment occurs when a Soldier fails to make a valid election not to participate in SBP. Auto-enrollment will occur unless, prior to retiring, the Soldier elects not to participate and the Soldier's spouse concurs with the election not to participate. This is prescribed by law, and auto-enrollment is executed by DFAS, not the U.S. Army. 3. The Board further noted the applicant has provided no evidence indicating his spouse would concur with an election to elect not to participate in SBP, nor has he provided sufficient evidence to demonstrate that his enrollment was in error, is unjust, or is inequitable. Based on a preponderance of evidence, the Board determined the applicant's enrollment in SBP was not in error or unjust. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : X :X :X 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, 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 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 SBP and who is married or has a dependent child when he becomes entitled to retired pay will be automatically enrolled, unless he elects with his spouse's concurrence not to participate in the plan before the first day for which he is eligible for that pay. By law, married Soldiers who fail to provide written spouse concurrence or an approved waiver of same before date of retirement, will be enrolled in full spouse SBP or, if any type of child/children coverage is elected, full spouse and child/children SBP. Title 10, USC, section 1448(a)(4) states that SBP elections are irrevocable. 3. 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. The spouse’s concurrence is required. No premiums will be refunded to those who opt to disenroll. 4. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR), prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. It states, the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190002798 3 1