IN THE CASE OF: BOARD DATE: 24 January 2023 DOCKET NUMBER: AR20220003485 APPLICANT REQUESTS: in effect, termination of his Survivor Benefit Plan (SBP) enrollment and cancellation of a debt owed due to non-payment of SBP Premiums. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 2656 (Date for Payment of Retired Personnel) * December 2021 Retiree Account Statement FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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 (he first wanted to get his former wife’s name , as his beneficiary. At that point, he wanted to add his present wife’s name on his VA documents. It was never explained to him and/or he never received documents explaining a bill for SBP. Now, he is being billed for back payment of SBP premiums at $10,328.17, for back pay since he was married. He wants to discontinue any future billing. He lives on his retired pay, and he cannot afford this bill. He has made 4 calls to fix this, and each person says it has to go to the Review Board. He needs help. 3. Review of the applicant’s service records shows: a. Having had prior service, he enlisted in the Regular Army on 24 April 1979. He served through multiple reenlistments, in a variety of assignments, and he attained the rank of sergeant first class (SFC)/E-7. b. On 4 August 1997, in anticipation of his upcoming retirement, he completed a DD Form 2656 (Date for Payment of Retired Personnel). He indicated that: * he was married to * they had two children and neither is disabled * he elected not to participate in the SBP * he and the Retirement Services Officer placed their signatures and dates (4 August 1997) in the appropriate block * his spouse did not sign the form; her signature block states “Concurrence statement not received” c. The absence of his spouse’s signature concurring with this election at the time, meant he was auto-enrolled in the SBP. [The statute, 10 USC 1448 was amended in March 1986 to require written concurrence by the spouse in a member's decision to decline the SBP or elect spouse coverage at less than the full base amount]. d. He retired on 31 January 1998, and he was placed on the retired list in his retired grade of SFC/E-7. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed over 21 tears of active service. e. The applicant states he remarried; however, he neither provides his divorce decree nor his marriage license. In the absence of a divorce decree, it is unknown if his divorce decree required him to change SBP election to former spouse SBP coverage. It is also unknown at what point SBP premiums were suspended. f. Likewise, in the absence of his marriage certificate and any correspondence with the Defense Finance and Accounting Service (DFAS), it is unknow when his SBP spouse coverage and SBP premiums resumed. e. The applicant provides a Retiree Account Statement (RAS) for December 2021. This RAS shows a deduction of SBP premiums at the rate of 157.79 monthly, spouse only cost. This RAS also shows he owes $10,318.17 debt in back payment. The Remarks block states “Your SBP debt will be included as a part of your SBP deduction displayed in the pay item description section. Your interest amount will be included as a part of the debt deduction displayed in the pay item description section.” 4. There is no evidence in the service record, and the applicant does not provide evidence, he terminated SBP participation, with spouse concurrence, within the 12 month window beginning on the second anniversary of the date on which his retired pay started. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The applicant wants termination of his SBP enrollment and cancellation of a debt owed due to non-payment of SBP Premiums. He declined in 1997 but his spouse did not concur. The absence of his spouse’s signature concurring with this election at the time, meant he was, by law, auto-enrolled in the SBP since the law required written concurrence by the spouse in a member's decision to decline the SBP or elect spouse coverage at less than the full base amount. He then got divorced and premiums appear to have been suspended. He then remarried and it took time for DFAS to charge him premiums. The applicant has the burden of demonstrating error or injustice by a preponderance of evidence. The Board determined the applicant has not met that burden. Any unexpected financial obligation the applicant is now experiencing is due to his own inattention as there is no evidence in the service record, and the applicant does not provide evidence, he terminated SBP participation, with spouse concurrence, within the 12 month window beginning on the second anniversary of the date on which his retired pay started. 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 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 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 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. This law also provides that every member having a spouse and/or child(ren), who retired/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list. 3. Title 10 U.S. Code (USC), section 1448, required notice to a spouse if a member elected not to participate in the SBP. The statute also provided for automatic enrollment for spouse coverage at the full base amount unless a member affirmatively declined to participate in the SBP prior to receiving retired pay. Title 10 USC, section 1448 was amended effective 1 March 1986 to require written concurrence by the spouse in a member's decision to decline the SBP or elect spouse coverage at less than the full base amount. 4. 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. 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) AR20220003485 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1