ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 October 2021 DOCKET NUMBER: AR20210005355 APPLICANT REQUESTS: in effect, correction of his DD Form 2656 (Data for Payment of Retired Personnel) to show he declined Survivor Benefit Plan (SBP) coverage and refund of his premium payments. 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) * Letter of Authorization, 10 May 2017 * 2017 Tax Documents * Flight Itinerary, 14 January-16 February 2018 * Job Offer Letter, 16 March 2018 * Offer Letter, General Question and Resume Email, 18 March 2018 * , 18-31 May 2018 * Email Correspondence, 21-31 August 2018 * Résumé and Work References Email, 6 September 2018 * Timesheet Email, 21 September 2018 * Iraq Work References * Iraq-Air Wing Travel Request and Flight Itinerary, 9 May 2018 * 2018 Tax Documents * Receipt of Evidence Email, 22-25 May 2020 * Combat Related Special Compensation (CRSC) Pay Statement, 1 June 2020 FACTS: 1. The applicant states he was automatically enrolled in the SBP when he was a contractor supporting Incorporated, and the State Department in Baghdad, Iraq. a. He has been living in since. He was at home stateside from his overseas job three times a year. He is unsure as to where the SBP/retirement paperwork was mailed. After he retired from the military, he previously lived in and now. b. The Defense Finance and Accounting Service (DFAS) told him there was no paper trail for him regarding enrolling and sending confirmation to DFAS. DFAS urgently expressed that he should seek guidance from the Army Review Boards Agency since he has unintentionally paid $10,098.09 in increments of $65.77 as of 2 June 2020. c. He believes his record to be in error or unjust based on the fact that he quit his Government job as a Federal Government employee on 4 or 5 April 2017 when hired him. He was in, in-processing for about a month and flew to Baghdad, Iraq, on 12 June 2017. He has been home from Iraq since 13 August 2018. He was unaware of the SBP enrollment until he saw his Government wages in MyPay. 2. His Enlisted Record Brief, 23 July 2004, shows he was previously married with one adult and one child dependent. 3. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged from active duty by reason of disability with severance pay on 10 September 2004. 4. The Letter of Authorization, 10 May 2017, states the applicant's deployment with was from 10 May 2017 through 31 October 2017. 5. His DD Form 215 (Correction to DD Form 214), 27 November 2017, shows his type of separation and narrative reason for separation changed to retirement by reason of permanent disability effective 10 September 2004. 6. His Internal Revenue Service Form 1040 (U.S. Individual Income Tax Return) for 2017 shows he filed his tax return in a single status and his address in 7. His International Weekly Timesheet, shows he worked in Iraq from 9 through 15 March 2018. 8. His employment letter, 16 March 2018, shows he accepted the job offer from. This letter shows his address in 9. The Letter of Authorization, 9 April 2018, states the applicant's deployment with was from 23 April through 1 July 2018. 10. His Verification of Employment letter, 16 June 2018, states he was employed with since 16 June 2018. He worked in Iraq on a 90-day in Iraq and 30-day out of Iraq rotation. 11. His Internal Revenue Service Form 1040 for 2018 shows he filed his tax return in a married status and his address in 12. His CRSC Pay Statement, 1 June 2020, shows a CRSC garnishment amount of $65.77 for a monthly SBP premium. The SBP premium deduction does not include any past due SBP premiums/interest. As of 20 May 2020, his past due SBP balance was $10,098.09. 13. On 24 November 2020, DFAS sent him letter, stating DFAS currently had him in an automatic coverage status because DFAS did not receive his original coverage election upon his retirement date. DFAS requested that he complete and return a DD Form 2656-8 (SBP – Automatic Coverage Fact Sheet) and list his dependents who were eligible for coverage effective 11 September 2004. 14. The DFAS office provided his DD Form 2656-8, undated, showing he is married and has two dependent children. The fact sheet states: a. Public Law 92-426, effective 21 September 1972, provides that every member having a spouse and/or child(ren), who retired/transfers (Reserve) on or after that date is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer. b. On the date his retired/retainer pay account was established, one of two situations occurred: either DFAS received no SBP election or DFAS received an invalid SBP election. Therefore, DFAS established his retired pay account with SBP coverage at the maximum rate, based on either spouse-only coverage or coverage based on the dependents listed on his invalid SBP election. c. Block 4 (Are you married?) shows he marked "Yes." d. Block 5 (Do you have any dependent children?) shows he marked "Yes." e. Block 6a (Spouse's Name) shows he entered f. Block 6d (Date of Marriage) shows he entered "." g. Block 7 (I have the following dependent children under age 22) shows he entered: * date of birth, natural son * date of birth, natural son 15. On 19 April 2021, an advisory opinion was obtained from the Director, Army Retirement Services, Department of the Army Office of the Deputy Chief of Staff, G-1, wherein the advisory official stated: a. The applicant was placed on the Permanent Disability Retired List (PDRL) retroactively on 27 November 2017 with an effective date of 11 September 2004. According to the application for review and the record, the applicant was in Iraq when the letter from the U.S. Army Physical Disability Agency was published, notifying him of the retroactive medical retirement and the instructions for contacting a Retirement Services Officer to receive the SBP counseling and to complete the DD Form 2656. The letter was addressed. The applicant claims he never received the letter and, therefore, never completed the DD Form 2656, and he was not aware of the automatic enrollment in the SBP. The applicant's records indicate that prior to his placement on the PDRL, he was married with one child. b. According to Title 10, U.S. Code, section 1448(a), persons entitled to retired pay are eligible to participate in the SBP. If the applicant was married with one child on the date of retirement, 11 September 2004, he is automatically enrolled in SBP by law to cover the spouse and/or child(ren) at the maximum level unless DFAS receives a notarized spouse concurrence on the DD Form 2656 of an election to decline SBP coverage, election of child-only coverage, or an election of less than the maximum level. c. Because a Soldier cannot make an SBP election prior to the effective date of a retroactive medical retirement, the Soldier can apply to the SBP Administrative Correction Board to adjudicate his request for an administrative correction if the Soldier desires coverage other than the automatic coverage. This must be done within 1 year of the published order of placement on the PDRL, otherwise the Soldier must apply to the Army Board for Correction of Military Records. Supporting documents to correct the record must comply with Title 10, U.S. Code, section 1448, and depend on the eligible beneficiaries at the date of retirement and any associated changes to beneficiaries to the present. d. According to the records with DFAS, the original election was automatic coverage that was later changed to child-only SBP coverage with the effective date of 11 September 2004. The listed annuitant is with a date of birth of 17 November 2002. As a result of this update, the premium costs have decreased to $16.51 per month. e. Because the applicant never received the letter from the U.S. Army Physical Disability Agency, he never received the required SBP counseling by a certified Army SBP counselor in accordance with Army Regulation 600-8-7 (Retirement Services Program) or the opportunity to apply to the SBP Board to request his desired SBP election within 1 year of publication of his orders placing him on the PDRL. In the interest of fairness, it is DFAS' recommendation that the applicant be given the opportunity to receive SBP counseling and make an SBP election at this time with the effective date of 11 September 2004. If he was married on the effective date of retirement and waives the SBP counseling or chooses to decline coverage, or elect child-only coverage, or elect coverage less than the maximum level for a spouse, he must have a notarized spouse concurrence in accordance with Title 10, U.S. Code, section 1448(a)(3), and Department of Defense Instruction 1332.42. 16. On 27 April 2021, the advisory opinion was forwarded to the applicant for acknowledgement and/or response. On 3 May 2021, the applicant agreed with the advisory opinion. 17. On 16 May 2021, the applicant submitted additional evidence to show he was employed as a contractor working in Baghdad, Iraq, between June 2017 and September 2018. He stated correspondence regarding his retirement may have been sent to his two previous addresses in. His 2018 Internal Revenue Service Forms W-2 (Wage and Tax Statement) show he worked for, and and his residential address in BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief was warranted. The Board carefully considered applicant’s contentions, military record, and regulatory guidance. The Board considered the G-1 advisory opinion and noted that the applicant concurred with the opinion. In fairness to the applicant the Board concurred with the advisory and he should be afforded the opportunity to receive SBP counseling and make an informed SPB selection. In the case that the applicant elects SBP, the effective date would be 11 September 2004. If he was married on the effective date of retirement and waives the SBP counseling or chooses to decline coverage, or elect child-only coverage, or elect coverage less than the maximum level for a spouse, he must have a notarized spouse concurrence in accordance with Title 10, U.S. Code, section 1448(a)(3), and Department of Defense Instruction 1332.42. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that the Department of the Army Records for the individual concerned be afforded the opportunity to receive SBP counseling and make an informed SPB selection. 2. If the case that the applicant elects SBP, the effective date would be 11 September 2004. 3. Were the applicant married on the effective date of retirement and waives the SBP counseling or chooses to decline coverage, or elect child-only coverage, or elect coverage less than the maximum level for a spouse, he must have a notarized spouse concurrence in accordance with Title 10, U.S. Code, section 1448(a)(3), and Department of Defense Instruction 1332.42. 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. Public Law 92-425, the SBP, 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election, once made, was irrevocable except in certain circumstances. The election must be made before the effective date of retirement or coverage defaults to automatic spouse coverage. 2. 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 SBP (cancellation or termination from the SBP begins in the 25th month through the 36th month or the third year of retirement). The spouse's concurrence is required. 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. No premiums will be refunded to those who opt to disenroll. 3. Title 10, U.S. Code, section 1448, requires spousal concurrence in any SBP election not to participate in SBP, to provide an annuity for a spouse at less than the maximum level, or to provide an annuity for a dependent child but not for the person's spouse. 4. The DFAS website states: a. retirees who meet one of the following two criteria are eligible to withdraw from SBP: (1) the retiree has had a service-connected disability rated by the Department of Veterans Affairs (VA) as totally disabled for a continuous period of 10 or more years; or (2) the retiree has had a total disability rating from the VA for at least 5 continuous years immediately following the last date of active duty. b. Withdrawal from SBP coverage due to a qualifying VA disability, sometimes referred to as discontinuation based on disability, is different than terminating SBP coverage between the 25th and 36th month of retirement. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210005355 1 1