IN THE CASE OF: BOARD DATE: 14 March 2023 DOCKET NUMBER: AR20220005827 APPLICANT REQUESTS: correction of his records to show he elected not to participate in the Survivor Benefit Plan (SBP) and cancellation of any SBP related debt. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Order D 165-22, 14 June 2021 (Permanent Retirement) * Order D 165-28, 14 June 2021, (revoke temporary retirement) * Record of Proceedings: DOD Physical Disability Board of Review * Approval by the Deputy Assistant Secretary of the Army (Review Boards (DASA (RB)), 28 October 2020 FACTS: 1. The applicant states he was on temporary retirement then was released on service- connected disability on 1/11/2005. In 2020, the decision [by the DOD Physical Disability Board of Review] was reversed to retire him and back date the retirement to 1/11/2005. This was almost 16 years later. He just received a letter from DFAS (Defense Finance and Accounting Service) on 3/22/2022 stating h owes $1,876.45 for back pay for Survivor Benefit Plan (SBP). It was not his choice that he was unfairly released from the Army. Why should he have to pay back pay on something that was not offered to him as he was not retired at the time? Based on the above information, had he died during the time that he was not retired, his children would have never received any money from the SBP. So how can he be charged to pay this money when it would have never been used? His children are all of age now that they would not receive this benefit. What about the fact that he had to pay for his health insurance all this time until last year when he was able to elect Tricare? He was paying $600 a month in health insurance before Tricare and now has the ability to drop it to $600 a year with Tricare. He would have been eligible to save all that money over the course of the years he was not retired. He has tried to contact DFAS, but they cannot help him because they cannot change anything that is stated he owes. He has exhausted all measures besides going to Congress or getting a lawyer to pursue this. He would prefer to just reverse the decision on SBP to not owe anything. 2. Review of the applicant’s service records shows: a. Having had prior service in the Army National Guard, the applicant underwent an enlistment physical on 23 April 1999. His Report of Medical Examination indicated he was married to b. The applicant enlisted in the Regular Army on 19 May 1999. Block 8 (Marital Status) of his DD Form 1966/1 (Record of Military Processing) shows he was married with three children. c. The applicant completed a Standard Form 86 (Questionnaire for National Security Positions) and listed his marital status as ‘married” and his spouse’s name as d. On 13 November 2002, a medical evaluation board determined some of his medical conditions did not meet medical retention standards and referred him to ap physical evaluation board (PEB). e. On 2 December 2002, an informal PEB convened and found his medical condition of Bronchial Asthma unfitting. He was assigned a disability rating of 30% with his disposition as placement on the temporary disability retired list (TDRL). He concurred and waived his right to a formal hearing f. on 9 January 2003, Headquarters, U.S. Army Armor Center, Fort Knox, published Orders 009-0152, releasing him from active duty because of physical disability on 26 January 2003, and placing him on the TDRL on 27 January 2003. g. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was retired on 26 January 2003, and he was placed on the TDRL in his retired grade of SGT on 27 January 2003. Block 19 (Nearest Relative) listed the applicant’s spouse’s name h. On 23 September 2004, a TDRL PEB convened and found his medical condition remained unfitting. The PEB assigned a combined disability rating of 0% with his disposition as separation with severance pay. i. On 10 January 2005, the U.S. Army Physical Disability Agency (USAPDA) published Order D010-29 that removed him from the TDRL and separated him effective 10 January 2005. j. On 21 June 2020, the DOD Physical Disability Board of Review (PDBR) adjudicated his disability rating and recommended his separation with severance pay be recharacterized to reflect permanent disability retirement with a combined disability rating of 30% vice 0%. The DASA (RB) approved the PDBR’s recommendation. k. On 14 June 2021, the USAPDA revoked Order D10-29, issued on 10 January 2005, and issued Order D165-22 removing him from the TDRL on 10 January 2005 and permanently retiring him on 11 January 2005, due to permanent disability, at 30%. 3. The applicant’s available service records indicate he remains married. He does not make any reference to being divorced and he does not provide a divorce decree. Likewise, the applicant does not provide a notarized document from his spouse agreeing (or disagreeing) with is decision to “not participate in the SBP.” 4. The SBP is a voluntary program that provides the survivors of participating military retirees a monthly income that starts when the member dies and retired pay stops. By law (10 USC section 1448), spouses and eligible dependents are protected by maximum SBP coverage after retirement unless the spouse and retiree elect not to enroll in the SBP or elect coverage at a reduced level. 5. Spouse Concurrence. If the service member is married and does not elect Spouse or Spouse and Child(ren) SBP coverage based on their full retired pay, the member’s spouse must sign the Data for Payment of Retired Personnel (DD Form 2656) concurring with the SBP election prior to the member’s retirement date. The spouse’s signature must be notarized and dated on or after the member’s signature on the DD Form 2656. If the member does not obtain their spouse’s concurrence, their SBP election defaults to Spouse or Spouse and Child(ren) SBP coverage based on the full retired pay. 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 was separated in January 2005 with disability severance pay. In 2020, the PDBR changed his separation to medical retirement. He was issued orders retiring him, backdated to January 2005. He was married then (and he presumably remains married today). DFAS paid him back retired pay and charged him SBP premiums backdated to January 2005. He contends this is unjust. He seeks a records correction to show he declined SBP coverage at retirement (medical retirement, effective 11 January 2005, pursuant to the DASA(RB)’s approval of a June 2020 DOD PDBR recommendation). The evidence of record reflects he was, and potentially still is, married at the time of retirement. Given the lack of spousal concurrence to decline SBP coverage, the Board determined relief is not warranted. It is the spouse’s – not the applicant’s – entitlement to an annuity that would be terminated by favorable ABCMR action. 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: Title 10, United States Code (10 USC), § 1448 established the Survivor Benefit Plan (SBP). a. Sub-paragraph (a)(1): General Rules for Participation in the Plan — The program established by this subchapter shall be known as the Survivor Benefit Plan. The following persons are eligible to participate in the Plan: (A) Persons entitled to retired pay and (B) Persons who would be eligible for reserve-component retired pay but for the fact that they are under 60 years of age. b. Sub-paragraph (a)(2): Participants in the plan — The Plan applies to the following persons, who shall be participants in the Plan: (1) (A)Standard annuity participants — A person who is eligible to participate in the Plan under paragraph (1)(A) and who is married or has a dependent child when he becomes entitled to retired pay, unless he elects (with his spouse’s concurrence, if required under paragraph (3)) not to participate in the Plan before the first day for which he is eligible for that pay. (2) (B)Reserve-component annuity participants — A person who (i) is eligible to participate in the Plan under paragraph (1)(B), and (ii) is married or has a dependent child when he is notified under section 12731(d) of this title that he has completed the years of service required for eligibility for reserve-component retired pay, unless the person elects (with his spouse’s concurrence, if required under paragraph (3)) not to participate in the Plan before the end of the 90-day period beginning on the date on which he receives that notification. A person who elects under subparagraph (B) not to participate in the Plan remains eligible, upon reaching 60 years of age and otherwise becoming entitled to retired pay, to participate in the Plan in accordance with eligibility under paragraph (1)(A). c. Sub-paragraph (a)(3) Elections — (A)Spousal consent for certain elections respecting standard annuity — A married person who is eligible to provide a standard annuity may not without the concurrence of the person’s spouse elect — (i) not to participate in the Plan; (ii) to provide an annuity for the person’s spouse at less than the maximum level; or (iii) to provide an annuity for a dependent child but not for the person’s spouse. [Exception when spouse unavailable — A person may make an election described in subparagraph (A) or (B) without the concurrence of the person’s spouse if the person establishes to the satisfaction of the Secretary concerned — (i) that the spouse’s whereabouts cannot be determined; or (ii) that, due to exceptional circumstances, requiring the person to seek the spouse’s consent would otherwise be inappropriate. d. Sub-paragraph (a)(4) Irrevocability of elections — (A) Standard annuity— An election under paragraph (2)(A) is irrevocable if not revoked before the date on which the person first becomes entitled to retired pay. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220005827 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1