ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 August 2022 DOCKET NUMBER: AR20220000162 APPLICANT REQUESTS: * correction of her records to show she elected to not participate in the Survivor Benefit Plan (SBP) * a personal appearance hearing before the Board 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) * Army Retirement Services Office SBP Retiring Soldier Counseling Statement, 3 April 2020 * SBP Withdrawal Consent, 1 June 2021 * Defense Finance and Accounting Service (DFAS) Letter, 1 September 2021 * Self-Authored Statement, 10 September 2021 * Self-Authored Statement, undated * Whole Life Insurance Policy Annual Premium Bill, 1 October 2021 * Email (Reply: ABCMR Docket Number AR20220000162), 22 July 2022 FACTS: 1. The applicant states the SBP was inadequately presented to her at the time of her medical retirement from the Regular Army and she was forced to decide with limited information and only given 10 minutes to make her decision. Unfortunately, she made the wrong decision. a. On 3 April 2020, she and her husband attended an appointment at the Retirement Services Office for her final out-processing. This was a particularly difficult day for her emotionally, facing the realization that her career was ending because she was unfit for duty in the Army. Because she had planned to complete a 20-year career, she was distraught coping with the loss of both her health and her career. b. The day prior to her final out-processing appointment, she was told to bring her husband so he could attend the SBP briefing with her. Prior to this, she had never heard of the SBP and did not have any background information about the program. During the 5-minute briefing, she and her husband were told about SBP and how much it would cost based on her disability rating. She and her husband were told they must decide before they left if they wanted to decline participation, and if they elected to not participate, that window would close and they could never choose to participate again. They were given a few moments to discuss it privately. At the time, the applicant's primary concern was that she did not know if she would be able to obtain life insurance based on her medical condition. Without the opportunity to further research the matter, they decided based on incorrect information and guidance. c. Later, she learned that they should have been given until her final day on active duty, 25 June 2020, to elect whether to participate in the SBP. However, they were given the wrong information and were clearly told they must make an election before leaving the final out-processing appointment or risk not being able to ever elect participation. That wrong information and guidance has negatively impacted her life financially, especially considering the Coronavirus Disease 2019 (COVID-19) pandemic economy. This occurred at the beginning of the COVID-19 restrictions, so her case was not handled as it should have been. Soldiers retiring from the military are given much more information regarding the SBP and provided more time to make this lasting decision. As a medical retiree, her transition timeline was very short; she was given only 2 days to complete the same tasks that others are given 2 years to complete. In her case, the SBP is not a good option because her husband is older than she and they have no children. d. After her final out-processing appointment, she began to investigate life insurance options and found that she was able to convert her Servicemembers' Group Life Insurance to a whole life plan with another provider. The plan has a guarantee that someone in her family would be able to receive the insurance benefit upon her death, even if her husband predeceases her. She compared numerous life insurance companies and was able to make a very educated decision. Had she been provided the time to research the SBP versus a life insurance plan that would best protect her family, she and her husband would have elected to not participate in the SBP. e. Immediately upon obtaining a private life insurance policy, she contacted DFAS and inquired about withdrawal from the SBP. She was advised to write a letter explaining why she was asking for an exception to policy. After receiving her letter, DFAS mailed a withdrawal packet which she completed and returned. She spoke with different DFAS representatives on multiple occasions and believed DFAS was going to approve her request to withdraw from the SBP. However, she received a DFAS denial letter stating that under the law she may not withdraw until she reaches the 5 or 10-year mark, based on her 100-percent VA disability rating. f. Upon receiving the DFAS denial letter, she contacted the Fort Lee Transition Office and informed them she was inadequately and unfairly informed about the SBP. She and her husband should have been provided more than 10 minutes to make the decision for such an important and permanent decision. This decision has already cost her thousands of dollars and will continue to accumulate at $194.21 every month until the plan is cancelled. The Transition Office program director reached out to her and informed her that she should have been able to have her SBP cancelled through her medical board process or until her separation date. However, she was not given that opportunity because the SBP was presented to her in a factually wrong and unfair manner. g. SBP participation has created a financial hardship. While her payment each month is based on a military pension, she doesn't receive a medical pension and only receives VA disability payments. Due to the COVID-19 pandemic, she has been unable to work as an immunocompromised individual with interstitial lung disease. She sustained a huge decrease in pay when she was medically separated from active duty, which has been further worsened by not being able to work during the pandemic restrictions and concerns. Had she been properly advised and given sufficient time to research available insurance options, she and her husband would not have elected to participate in the SBP. It has been an unnecessary burden and cause of stress for her and her family. 2. On 3 April 2020, she was serving in the Regular Army in the rank/grade of sergeant first class/E-7. 3. The Army Retirement Services Office SBP Retiring Soldier Counseling Statement, 3 April 2020, shows she signed the document certifying that she received SBP counseling. 4. Her DD Form 2656 (Data for Payment of Retired Personnel), 3 April 2020, shows in: * item 4 (Retirement/Transfer Date) – 26 June 2020 * item 29 (Spouse) – * item 30 (Date of Marriage) – 7 June 2013 * item 32 (Dependent Children) – none listed * item 34 (SBP Beneficiary Categories) – "I Elect Coverage for Spouse Only" is marked * item 35 (SBP Level of Coverage) – "I Elect Coverage Based on Full Gross Pay is marked * item 39c (Member – Date Signed) – * 3 April 2020 * instructions, in part – "Also, I understand that if I elected less than full SBP coverage for my spouse, I will need my spouse's notarized concurrence signed no earlier than the date of my signature and prior to the date of my retirement; otherwise, by law, I will automatically be covered at the maximum spouse coverage" * item 40 (Witness – Date Signed) – signed by a Retirement Services Counselor – 3 April 2020 5. U.S. Army Combined Arms Support Command Orders 154-0502, 2 June 2020, retired her by reason of physical disability incurred while entitled to basic pay and under conditions that permit her retirement for permanent physical disability. The orders show: * Date Placed on Retired List – 26 June 2020 * Retired Rank/Grade – sergeant first class/E-7 * Percentage of Disability – 90 percent * Component – Regular Army * Disability Retirement – 12 years and 22 days * Basic Pay – 12 years and 22 days * Disability Resulted from a Combat Related Injury – No 6. The DFAS-Cleveland Form 1077 (SBP Withdrawal Consent), 1 June 2021, shows in Part II (Consent for SBP Withdrawal): * "After having reviewed the Survivor Benefit Plan Withdrawal Fact Sheet on the advantages in participating in the plan and disadvantages in withdrawing from the plan, I hereby request withdrawal from the plan" * Member's Signature – 1 June 2021 * Spouses Signature – * "I hereby give my consent for the withdrawal from the Survivor Benefit Plan" * 1 June 2021 7. The DFAS letter, 1 September 2021, denied her request to withdraw from the SBP. The military pay technician stated that Public Law 96-402 allows a member to discontinue participation in the SBP if he/she suffers from a service-connected disability rated by the VA as totally disabling and has suffered from such disability for a continuous period of 10 or more years, or, if so rated for a lesser period, has suffered from such disability for a continuous period of not less than 5 years immediately following the date of release from active duty. Because the VA rated the applicant 100-percent disabled effective 1 July 2020, she is currently unable to withdraw from the SBP. 8. Her letter to DFAS, undated, states she is unable to pay her September 2021 SBP premium. She recently had to pay her annual premium for her private life insurance policy in the amount of $1,661.00. Due to her limited income and other expenses, to include mortgage, utilities, groceries, and other necessities, the SBP premium has created a financial burden. 9. On 21 July 2022, a member of the Army Board for Correction of Military Records staff contacted the applicant and requested notarized spousal concurrence with her election to terminate participation in the SBP. 10. The email from the applicant (Reply: ABCMR Docket Number AR20220000162), 22 July 2022, states she will submit a DD Form 2656-2 (SBP Termination Request) for consideration, and she desires a personal appearance hearing before the Board. A DD Form 2656-2 with spousal concurrence was not provided. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board determined relief was not warranted. The applicant's contentions, her military records, and regulatory guidance were carefully considered. Based upon the applicant reasoning for not making the proper election at the time of separation and the detailed SBP Counseling Statement, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s SBP election. 2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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, 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. 2. Public Law 96-402, enacted 9 October 1989, provides that any person who has elected to participate in the SBP and who is suffering from a service-connected disability rated by the VA as totally disabling, and has suffered from such disability while so rated for a continuous period of 10 or more years (or, if so rated for a lesser period, has suffered from such disability while so rated for a continuous period of not less than 5 years from the date of such person's last discharge or release from active duty) may discontinue participation in the plan. 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 for disenrollment. 4. The Defense Finance and Accounting Service website: https://www.dfas.mil/ RetiredMilitary/provide/sbp/SBP-Withdrawal-due-to-VA-Disability/ states: a. Retirees who meet one of the following two criteria are eligible to discontinue participation in the SBP: (1) the retiree has had a service-connected disability rated by the 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 discharge or release from active duty. b. In deciding about discontinuing participation in the SBP, one should consider both the potential VA award of Dependency and Indemnity Compensation and the amount of the SBP annuity. c. Discontinuing SBP coverage due to a qualifying VA disability (also referred to as withdrawing from SBP coverage due to VA disability) is different than terminating SBP coverage between the 25th and 36th month of retirement. A request to discontinue SBP participation requires the written consent of the beneficiary or beneficiaries. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220000162 1 1