IN THE CASE OF: BOARD DATE: 22 February 2023 DOCKET NUMBER: AR20220005000 APPLICANT REQUESTS: In effect, correct his records to show he submitted a DD Form 2656-2 (Survivor Benefit Plan (SBP) Termination Request) to Defense Finance and Accounting Service (DFAS), and DFAS accepted it prior to his 36th month of retirement. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * Online DD Form 149 (Application for Correction of Military Record) * DD Form 2656-2 with four second pages * DFAS letter FACTS: 1. The applicant states DFAS failed to properly handle his SBP termination request, and, as a result, they denied its cancellation. a. The applicant states, in effect, he was a member of the Maine Army National Guard (MEARNG), and, on 15 September 2018, the Army retired him and placed him on the Permanent Disability Retired List (PDRL), effective 16 September 2018. b. With his wife's consent, the applicant sought to terminate his SBP, and he submitted his first DD Form 2656-2 in April 2021; the form was signed by a witness, but it was missing a notary seal and the dates of his spouse and the witness did not match. Later, in June 2021, he submitted a second form and, again, he had a witness sign; now the signature dates matched, but it still was without a notary seal. c. On 20 September 2021 (after the applicant's window for filing a termination had expired), DFAS sent the applicant a letter acknowledging receipt of his two DD Forms 2656-2, but noting both had errors: * First form – the date the witness signed did not match the date the applicant's spouse signed and was missing a notary seal * Second form – had matching signature dates lacked a notary seal d. On 29 September 2021, the applicant sent DFAS a third DD Form 2656-2 that had matching dates for the signatures and a notary seal, but, because it was received after the deadline, DFAS denied his request. DFAS now refuses to help the applicant, despite one of their customer service agents telling him that, because he had initiated the termination request before the deadline, DFAS would still honor the cancellation request. DFAS customer service representatives also gave the applicant inaccurate information, claiming that the applicant had until October, rather than September, to file his cancellation. At this point, DFAS' only advice is to ask the ABCMR for relief. 2. The applicant's service records show: a. On 26 March 2012, the applicant enlisted into the North Carolina Army National Guard (NCARNG) for 8 years. On 16 June 2012, he entered initial active duty for training to complete his initial entry training; on 17 December 2012, following the award of military occupational specialty 25U (Signal Support Systems Specialist), orders honorably released the applicant from active duty (REFRAD) and returned him for duty to the NCARNG. b. On 13 February 2017, the applicant entered Full-Time National Guard Duty – Operational Support, reporting to Fort Bragg, NC. On 27 April 2017, while at Fort Bragg, the applicant incurred injuries in a motor vehicle accident. c. On 20 June 2017, the applicant extended his enlistment by 2 years, 3 months, and 5 days, making his adjusted expiration term of service 30 June 2020. On 1 July 2017, the applicant executed an interstate transfer to the MEARNG, and effective 1 July 2017, the MEARNG ordered the applicant to active duty in an Active Guard/Reserve status. d. On 11 June 2018, based on the injuries sustained in the April 2017 car accident, an informal physical evaluation board (PEB) found the applicant physically unfit for continued military service and recommended the applicant's placement on the PDRL with a 40 percent disability rating. On 14 June 2018, the applicant concurred with the PEB's findings and recommendations, and, on 29 June 2018, the U.S. Army Physical Disability Agency approved the PEB's results. e. On 15 September 2018, orders honorably retired the applicant and transferred him for placement on the PDRL; effective that same date, the MEARNG honorably discharged the applicant due to physical disability. Effective 16 September 2018, the Army placed the applicant on the PDRL. 3. Public Law 92-425, enacted on 21 September 1972, established the SBP. a. The SBP allowed military members on active duty to set up an annuity for their surviving dependents after the military member’s death. Except in certain circumstances (such as noted below), an election, once made, is irrevocable. Declining to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse coverage; such a declination requires spousal concurrence. b. Public Law 105-85, enacted 18 November 1997, established an option to terminate SBP participation. Under this provision, retirees have a 1-year period between the 25th and 36th month after starting their retired pay to withdraw from SBP. The spouse’s concurrence is required, no premiums are refunded to those who opt to disenroll, and the member is barred from any future enrollments. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, 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 found applicant made two attempts during the relevant time period (received by DFAS on 4 June and 3 July 2021) but his spouse’s signature was not notarized. Evidence shows the applicant received a notification from DFAS on 20 September 2021 that advised him to send in another form with his spouse’s signature notarized. The DFAS notification was dated after the termination period had expired so the form applicant sent in immediately afterwards (with a notarized signature from his spouse) was untimely. 2. The Board determined the applicant intended to terminate SBP and his spouse signed her concurrence twice. Based on regulatory guidance, the DD Form 2656-2 requires spousal consent to be notarized so there was no error when DFAS denied the termination. The Board found that DFAS did not advise applicant of the problem with his two forms until after the deadline to terminate so applicant did not have the opportunity to correct the problem. Based on this, the Board granted relief to correct the applicant’s records to show he submitted a DD Form 2656-2 (Survivor Benefit Plan (SBP) Termination Request) to Defense Finance and Accounting Service (DFAS), and DFAS accepted it prior to his 36th month of retirement. ? 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) on 12 September 2021, with proper spousal concurrence, and his election was received and processed in a timely manner by the appropriate DFAS office. Such relief should result in the repayment of any previously paid SBP premiums. 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 on 21 September 1972, established the SBP. The SBP allowed military members on active duty to set up an annuity for their surviving dependents after the military member’s death. Except in certain circumstances, an election, once made, is irrevocable. Declining to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse coverage. 2. Public Law 105-85, enacted 18 November 1997, established an option to terminate SBP participation. Under this provision, retirees have a 1-year period between the 25th and 36th month after starting their retired pay to withdraw from SBP. The spouse’s concurrence is required, no premiums are refunded to those who opt to disenroll, and the member is barred from any future enrollments. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220005000 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1