IN THE CASE OF: BOARD DATE: 1 March 2023 DOCKET NUMBER: AR20220004622 APPLICANT REQUESTS: * correction of his records to show he declined participation in the Survivor Benefit Plan (SBP) * reimbursement of SBP premiums already paid * a personal appearance hearing before the Board via video/telephone APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provision of Title 10, U.S. Code, Section 1552) * Document List with Dates Screenshot FACTS: 1. The applicant requests termination of SBP premiums and reimbursement of premiums paid since 1 January 2022. On 2 December 2021, he submitted the only notarized copy he had of the DD Form 2656 (Data for Payment of Retired Personnel) to the Fort Carson Transition Office. The form was never submitted to the U.S. Army Human Resources Command (HRC). On 29 November 2021, he completed a DD Form 2656, declining the SBP after talking to his financial advisor and his supervisor. On 1 December 2021, he and his wife went to the Joint Forces Headquarters to meet with his Retirement Services Officer to receive his clearing documents and have his DD Form 2656 notarized. Unfortunately, the Retirement Services Officer did not have his notary public stamp with him, so he and his wife went to their credit union to have the form notarized. He turned in his only notarized copy to the Fort Carson Transition Office. 2. Following a period of Regular Army enlisted service, he enlisted in the Colorado Army National Guard. 3. He retired from active duty as a member of the Army National Guard on 31 December 2021. His final DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 years, 10 months, and 16 days of net service during this period with 19 years, 1 month, and 28 days of prior active service. 4. The Defense Finance and Accounting Service (DFAS) Military Pay Operations Office provided an email response on 27 October 2022, stating a copy of the applicant's DD Form 2656 had not been forwarded to their office. The DFAS representative recommended that the applicant provide a copy, if available, to allow DFAS to make adjustments. The DD Form 2656 provided to DFAS is not signed by the applicant nor does it contain spousal concurrence. 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 not 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 law, policy and regulation. Upon review of the applicant’s petition and available military records, the Board determined there is insufficient evidence showing the applicant’s spouse provided written consent for termination of his survivor benefits plan. The Board found based on public law, SBP participants may terminate their coverage during the 25th through 36th-month time window subsequent to the applicant’s commencement of receiving retirement pay. The Board agreed the applicant and his spouse will have the opportunity to terminate SBP coverage in about 10 to 11 months during open season from January 2023 – February 2024. Based on this, the Board denied relief. 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. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the Army Board for Correction of Military Records (ABCMR). The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Public Law 92-425, the SBP, enacted 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. 3. 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. 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 the SBP (cancellation or termination from the SBP begins the 25th month through the 36th month or the 3rd 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. 5. The National Defense Authorization Act for Fiscal Year 2023 includes an SBP open season. The SBP open season began on 23 December 2022 and ends on 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). For retirees receiving pay, enrollment does require paying the premiums plus interest for the period since the date they were first eligible to enroll, as well as the monthly premiums moving forward.? 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. 6. The DFAS website states a retired service member is free to cancel or terminate his/her SBP election beginning the 25th month through the 36th month or the 3rd year of his/her retirement. As with declining at retirement, spousal concurrence is required. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220004622 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1