IN THE CASE OF: BOARD DATE: 21 June 2023 DOCKET NUMBER: AR20220010992 APPLICANT REQUESTS: in effect, correction of his records to show he declined participation in the Survivor Benefit Plan (SBP) with spousal concurrence prior to retirement. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Application, License, and Certificate of Marriage, 24 September 2021 * DD Form 2656 (Data for Payment of Retired Personnel), 20 January 2023 (incomplete) * DD Form 2656-2 (SBP Termination Request), 20 January 2023 FACTS: 1. The applicant states he was provided an SBP briefing during his transition to retirement from the U.S. Army. He discussed the SBP with his spouse and they both decided it was not in their best interest to participate in the SBP. a. His meeting for the SBP was on 3 May 2022. His spouse could not attend the meeting due to family problems in. During the meeting, the retirement services representative presented him with the SPB form to sign, which he declined. He was informed by the retirement services representative that a package would be sent to his house with the SBP document for his spouse to sign. b. After his records were sent forward, he contacted the Directorate of Human Resources at Fort Bragg, NC. The Directorate of Human Resources informed him that the package was delivered according to the post office; however, he never received or signed for any packages. c. He and his spouse both state they do not want to participate in the SBP. 2. On 23 September 2021, the applicant married . 3. The Defense Retiree and Annuitant Pay System shows the applicant completed a DD Form 2656 on 3 May 2022. The DD Form 2656 shows the applicant was married and had one dependent child. The form further shows the applicant elected not to participate in the SBP. The applicant and a witness signed and dated the DD Form 2656; however, spousal concurrence and notary witness signatures are missing. 4. On 5 July 2022, he retired from active duty by reason of combat-related disability. He completed 16 years, 10 months, and 12 days of total active service. 5. His DD Form 2656-2, 18 January 2022 (should read 2023), requested termination of his SBP. His spouse signed and dated the DD Form 2656-2 on 20 January 2023 and the form was notarized the same date. 6. On 20 January 2023, he submitted an incomplete DD Form 2656. The form is missing several pages/sections. a. Part I (Retired Pay Information), Item 4 (Retirement Transfer Date), shows 5 July 2022. b. The portion indicating whether he is married or has dependent children is missing/incomplete. c. Part I, Section X (SBP Election), Item 36 (SBP Beneficiary Categories), shows he marked "I elect not to participate in SBP. I have eligible dependents under the plan. (If currently married spousal concurrence is required)." His and a witness's signature and dates are missing. d. Part V (Spouse SBP Concurrence) (Required ONLY when the member is married and elects either: (a) child only SBP coverage, (b) does not elect full spouse SBP coverage; or (c) declines SBP coverage. This is not required for any former spouse or former spouse and child elections. The date of the spouse's signature in Item 43.c. MUST NOT be before the date of the member's signature in Item 41.c., or on or after the date of retirement listed in Part I, Section I, Item 4. The spouse's signature MUST be notarized. Electronic signatures are allowed.) shows his spouse signed and dated the DD Form 2656 on 20 January 2023 and the form was notarized the same date. BOARD DISCUSSION: 1. 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 determined there was sufficient evidence showing the applicant filled out the DD Form 2656 to indicate a declination of any SBP coverage. The Board agreed, the applicant expressed a clear and concise intention to decline coverage. The Board noted the applicant submitted his applicant to the Board within weeks of his 5 July 2022 retirement date, which demonstrated to the Board, he has been attentive and proactive to this problem from the beginning. The Board determined the applicant departed his retirement counseling session with the knowledge that he needed his spouse’s written and notarized concurrence to make his declination effective. 2. The Board found the applicant, nor his spouse received the necessary documentation for his spouse’s concurrence prior to his discharge of 5 July 2022. The Board agreed the applicant in good faith attempted to complete the necessary documentation to terminate his SBP coverage. The Board found there was enough merit for relief; however, the Board determine that refund of premium payments already paid is not warranted because the applicant and his spouse have enjoyed the benefits of SBP coverage ever since his retirement in July 2022. Based on the preponderance on evidence the Board determined there was sufficient evidence to grant relief to correct the applicant record for declination of his SBP benefits. 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 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) on5 July 2022, with proper spousal concurrence. 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, enacted 21 September 1972, established the SBP. The SBP 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 very specific circumstances. The election must be made before the effective date of retirement or coverage defaults to automatic spouse coverage. Since its creation, it has been subjected to a number of substantial legislative changes. 2. 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 provided less than maximum spouse coverage. 3. 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. 4. Periodically Congress authorizes an open enrollment season to allow retirees certain changes to their SBP participation or non-participation. The National Defense Authorization Act for Fiscal Year 2023 authorized an open enrollment season from 23 December 2022 through 1 January 2024. a. The SBP open season allows for retirees receiving retired pay, eligible members, or former members awaiting retired pay who are currently not enrolled in the SBP or Reserve Component SBP to enroll. For a member who enrolls during the SBP open season, the law generally requires that the member will be responsible to pay retroactive SBP premium costs that would have been paid if the member had enrolled at retirement (or enrolled at another earlier date, depending on the member's family circumstances). b. The SBP open season also allows eligible members and former members who are currently enrolled in either the SBP or Reserve Component SBP to permanently discontinue their SBP coverage. The law generally requires the covered beneficiaries to concur in writing with the election to discontinue. Previously paid premiums will not be refunded. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220010992 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1