IN THE CASE OF: BOARD DATE: 26 October 2021 DOCKET NUMBER: AR20200010252 APPLICANT REQUESTS: correction of his record to show he did not elect coverage under the Survivor Benefit Program (SBP). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 2656 (BACK) (Data for Payment of Retired Personnel), 2 June 2016 * Spouse's notarized signature concurring with SBP termination, 14 May 2020 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, United States Code, section 1552(b); however, the Army Board for Correction of Military Records (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, in effect, he did not elect to participate in the SBP, and he needs the SBP removed or cancelled. He was never properly briefed when he was medically retired. He never received the support necessary to execute a full and conscious decision. He did not know or have access to a retirement services officer. He was the first Soldier in his unit that his noncommissioned officer (NCO) has ever medically retired, and the NCO did not know the entire process, so he couldn’t explain everything to him. He cannot afford the SBP premiums. His retired pay is waived due to Department of Veterans’ Affairs benefits. 3. The applicant’s record shows: a. He enlisted in the Illinois Army National Guard (ILARNG) on 4 May 2006. He entered active duty for initial entry training (IET) on 31 October 2006. He completed IET and was transferred to his ILARNG unit on 30 March 2007. b. His DD Form 93 (Record of Emergency Data), dated 6 May 2012 lists his wife. c. The DD Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 18 March 2016 shows he was found physically unfit for military service and recommended his placement on the Temporary Disability Retired List (TDRL). d. His NGB Form 22 (National Guard Report of Separation and Record of Service) shows he was honorably released from the ILARNG on 6 June 2016, in the rank/grade of specialist/E-4 and transferred to U.S. Army Reserve Control Group (Retired Reserves). He completed 10 years of total service for retired pay purposes. He was placed on the TDRL effective 7 June 2016. e. After a periodic medical examination while on the TDRL, the PEB recommended a change to his disposition by placing him on the Permanent Disability Retired List (PDRL). He was removed from the TDRL and placed on the PDRL effective 18 July 2018. f. His record is absent a DD Form 2656-6 (SBP Election Certificate), which would show his SBP elections. 4. The applicant provides: a. The back of his DD Form 2656 that shows he elected SBP coverage for his spouse and children, based on his full gross pay. He authenticated the form with his signature on 2 June 2016, and b. A notarized letter from his wife, dated 14 May 2020 that shows she concurs with the applicant’s request to terminate spousal SBP coverage. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was warranted. Board members reviewed the applicant's statement, evidence, and service record. Board members noted the applicant's DD Form 2656 that shows he made an affirmative action to elect SBP coverage for his spouse and children based on his full gross pay. He authenticated the form with his signature on 2 June 2016. There is no error or injustice in his election. However, Board members noted he may not have been properly counseled or may have misunderstood the SBP program and its associated cost and/or his financial obligations. This is further evidenced by the notarized letter from S_ Z_, dated 14 May 2020, that shows she concurs with the applicant’s request to terminate spousal SBP coverage. The Board voted to correct his records to show he elected not to participate in the SBP with spousal concurrence at the time of his disability retirement. 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 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 he properly declined the Survivor Benefit Plan (SBP) on 17 July 2018, with spousal concurrence, and his election was received and processed in a timely manner by the appropriate DFAS office. Such relief should result in reimbursement of any previously paid SBP premiums. 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, enacted 21 September 1972, established the SBP. The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. 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. Department of Defense Financial Management Regulation, volume 7B, chapter 43, provides guidance on SBP elections. This chapter states, in pertinent part, that effective 1 March 1986, a married member is enrolled with spouse coverage based on full retired pay at the time of retirement unless that spouse has concurred in writing to another election requested by the member. When the spouse's concurrence is required, the signature indicating concurrence must be corroborated by one or more witnesses. 5. 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) AR20200010252 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1