ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 June 2022 DOCKET NUMBER: AR20210015061 APPLICANT REQUESTS: correction of his records to show he declined participation in the Survivor Benefit Plan (SBP) for spouse coverage. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * DD Form 2656 (Data for Payment of Retired Personnel), 9 June 2021 * Army Retirement Services Officer (RSO) SBP Retiring Soldier Counseling Statement, 9 June 2021 * Spouse SBP Election Concurrence Statement, 12 July 2021 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 August 2021 FACTS: 1. The applicant states that prior to his active duty retirement, he and his spouse elected to not participate in the SBP, as clearly indicated on his DD Form 2656 and the required SBP Spouse Election Concurrence Statement. At the direction of his RSO, he was advised that his spouse did not need to complete the Part V – Spouse SBP Concurrence section of the DD Form 2656. Instead, she needed to sign a separate Spouse SBP Election Concurrence Statement in the presence of a notary public. As a result, they complied with all directions and submitted the required paperwork. His RSO confirmed their election was valid and supplied the counseling statement. However, when he received his first retired paycheck, he discovered the SBP premium was deducted from his pension. When he contacted the Defense Finance and Accounting Service, he was informed that he was automatically enrolled due to conflicting signature dates. The error occurred based on the counseling given by his RSO – it was not intentional or an omissive oversight. 2. On 3 June 1995, he entered active duty in the rank/grade of second lieutenant/O-1. 3. On 29 September 1996, he married T____. 4. His DD Form 2656 (Data for Payment of Retired Personnel), 9 June 2021, shows in: * item 4 (Retirement/Transfer Date) – 1 September 2021 * item 29a (Spouse) – T____ * item 30 (Date of Marriage) – 29 September 1996 * item 34 (SBP Beneficiary Categories) –"I Elect Not to Participate in SBP" is marked and "I have eligible dependents under the plan" is marked "Yes" * item 39c (Member – Date Signed) – 9 June 2021 * item 40 (Witness – Date Signed) – 2 June 2021 * item 41c (Spouse SBP Concurrence – Signature) – void of an entry * item 42 (Notary Witness – Date Signed) – void of an entry 5. The Army Retirement Services Office SBP Retiring Soldier Counseling Statement, 9 June 2021, states the applicant received the SBP counseling and understood the following: * retired pay stops upon death and participating in the SBP is the only way eligible beneficiaries will receive a portion of his retired pay after his death * estimated amounts of monthly retired pay, SBP costs, and SBP annuities * he must complete an SBP election on the DD Form 2656, even if he has no eligible beneficiaries * if married and he elects less than the maximum spouse SBP coverage allowed by law, he will require his spouse's concurrence * spouse concurrence must be signed on or after the date he signed and prior to the date he was placed on the Retired List to be valid * the SBP election is generally irrevocable * he can terminate all SBP coverage between the 25th and 36th month following his retirement with his spouse’s concurrence * there is no refund of premiums for coverage he already received and he will be barred from future SBP participation * if he does not elect SBP coverage for a spouse or eligible child at retirement, he closes those SBP categories forever 6. The Spouse SBP Election Concurrence Statement, 12 July 2021, shows the applicant's spouse received information that explains the service member's SBP election and the effects of the election. The concurrence states she understands that retired pay stops on the day the retiree dies and that participation in the SBP is the only way for a retiree to continue a portion of this/her retired pay. If she non-concurs, does not have her signature witnessed by a notary public, or fails to complete and return this statement by 1 September 2021, the effective date of her spouse's retirement, her spouse will receive automatic spouse SBP coverage based on full retired pay. It shows: * spouse marked the "Concur" block – Decline SBP, No Spouse Coverage * spouse signature – name of spouse * spouse signature date – void of entry * date spouse appeared before notary public – 12 July 2021 * notary public signature – name of notary 7. He retired on 31 August 2021 in the rank/grade of colonel/O-6. His DD Form 214 shows in: * item 12c (Net Active Service This Period) – 26 years, 2 months, and 28 days * item 23 (Type of Separation) – Retirement * item 25 (Separation Authority) – Army Regulation 600-8-24 * item 28 (Narrative Reason for Separation) – Sufficient Service for Retirement BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found that relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on public law, policy and regulation. Upon review of the applicant’s petition and available military records the Board found evidence showing a signed and notarized spousal concurrence and it was clear the intent of applicant and spouse was to decline SBP at the time of his retirement. The applicant was auto-enrolled in SBP because his wife did not date her signature. However, the notary signed on 12 July 2021 which is after applicant made his election known and before he retired. The Board agreed the applicant’s spouse knowingly and timely concurred with the declination of SBP. Based on this the Board determined relief was warranted and relief was granted to terminate his Survivor Benefit Plan (SBP) enrollment and reimburse the applicant all previous payments made. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 XXX XXX XXX 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 he properly declined the Survivor Benefit Plan (SBP) on 12 July 2021 with proper spousal concurrence, and his election was received and processed in a timely manner by the appropriate DFAS office. Such relief should result in the repayment 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: Title 10, U.S. Code, section 1448, provides the general rules for participation in the SBP. A married person who is eligible to provide a standard annuity may not elect to not participate in the plan or to provide a spouse annuity at less than the maximum level without the concurrence of the person's spouse. A standard annuity election is irrevocable if not revoked before the date on which the person first becomes entitled to retired pay. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210015061 1 1