IN THE CASE OF: BOARD DATE: 16 June 2020 DOCKET NUMBER: AR20190007900 APPLICANT REQUESTS: termination of his Survivor Benefit Plan (SBP) enrollment. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 2656-8 (Survivor Benefit Plan (SBP) – Automatic Coverage Fact Sheet * DD Form 2656 (Data for Payment of Retired Personnel) dated 1 November 2018 * Army RSO Survivor Benefit Plan (SBP) Retiring Soldier Counseling Statement dated 1 November 2018 * Spouse SBP Election Concurrence Statement dated 19 November 2018 * Defense Finance and Accounting Service (DFAS) letter dated 30 April 2019 FACTS: 1. The applicant states that his spouse signed and concurred with his election to decline participation in the SBP. 2. A review of the applicant’s available service records reflects the following: a. On 10 October 1997 he enlisted in the Army Reserve in a delayed entry/enlistment program. b. On 21 November 1997 he enlisted in the Regular Army. c. On 1 November 2018 he completed DD Form 2656 (Data for Payment of Retired Personnel) declining participation in the SBP. Section XII (SBP Spouse Concurrence) contains his spouse’s name, but does not contain her signature and the document is not notarized. d. On 19 November 2018 his spouse completed a “Spouse SBP Election Concurrence Statement” indicating that she concurred with the applicant’s election to decline participation in the SBP. The document further reflects that it must be returned by 27 November 2018. e. On 27 November 2018 (Order# 242-0017) he was released from active duty due to a permanent physical disability. 3. The applicant provides the following a: a. DD Form 2656-8 (Survivor Benefit Plan (SBP) – Automatic Coverage Fact Sheet reflecting the applicant’s name, however the remainder of the document is blank. b. DD Form 2656 (Data for Payment of Retired Personnel) dated 1 November 2018 reflective of his election to decline participation in the SBP. Section XII (SBP Spouse Concurrence) contains his spouse’s name, but does not contain her signature and the document is not notarized. c. Army RSO Survivor Benefit Plan (SBP) Retiring Soldier Counseling Statement dated 1 November 2018 reflective of his understanding of his entitlements under the SBP, premiums paid and ability to withdraw from the SBP if the VA rates him as being totally disabled either for both SBP and Dependency Indemnity Compensation (DIC). He declined participation in the SBP. d. Spouse SBP Election Concurrence Statement dated 19 November 2018 reflective of his spouse’s concurrence with his election to decline participation in the SBP. The document is signed and notarized. e. Defense Finance and Accounting Service (DFAS) letter dated 30 April 2019 reflective of his SBP coverage being in an Automatic election status due to his spouse’s concurrence letter not being dated after signature and returned to them on 27 November 2018. As a result they expressed their inability to process his request and therefore directed him to seek a correction of his military records through the ABCMR. 4. See all applicable regulatory guidance below under REFERENCES. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief is warranted. Based on the evidence, the applicant declined SPB coverage and his spouse approved of this election. The applicant’s SPB premiums paid should be refunded to him. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was 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 that he declined SBP coverage and that any SBP premiums collected be reimbursed to the individual. 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 USC 1448 states that a person who is eligible to participate in the plan under 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. 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 if not revoked before the date on which the member first becomes entitled to retired pay. 2. 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. Married Soldiers may not decline, without the written, notarized concurrence of their spouses, to participate in SBP, to provide an annuity for the Soldier’s spouse at less than the maximum level, or to provide an annuity for a dependent child but not for their spouses. 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. 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 for disenrollment. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190007900 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1