IN THE CASE OF BOARD DATE: 28 February 2023 DOCKET NUMBER: AR20220007422 APPLICANT REQUESTS: in effect, correction of his records to show he declined participation in the Survivor Benefit Plan (SBP) with spousal concurrence on 4 January 2022. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Records) * DD Form 2656 (Data for Payment of Retired Personnel), dated 4 January 2022 FACTS: 1. The applicant states he wants to have his DD Form 2656, Section XII (SBP Spouse Concurrence) block 41c (Date Signed) corrected to reflect the date of 4 January 2022. He states in effect, he signed the DD Form 2656 declining coverage on 4 January 2022. His spouse, whose concurrence is required, signed this form on 21 December 2021 (before he made the election) and her signature was notarized on 4 January 2022, after she had signed. 2. The applicant’s service record shows the following information: a. The applicant was born on 16 b. The applicant served in various components of the Army from 30 March 1988 to 18 January 2022, including the Regular Army, Army National Guard, and U.S. Army Reserve, attaining the grade of chief warrant officer five (CW5). c. The applicant was previously married to his former spouse,. They married on 29 Mary 1993 and divorced 20 May 2014. As part of their divorce settlement, the parties reached an accord as it pertained to the applicant’s then-future SBP benefits with the following nebulous statement, “Survivor benefits as available at her own expense”. There are no other associated court documents amending or defining their then-intent. d. He married on 28 May 2014. e. He joined the Oklahoma Army National Guard (OKARNG) on 9 May 2018. f. Orders 0001594531.00, issued by the Army Element Joint Force Headquarters, OKARNG, dated 4 January 2022, reflects he was transferred to the Retired Reserve due to a permanent disability. g. His NGB Form 22 shows he was honorably transferred to the Retired Reserve on 19 January 2022. He had 33 years, 11 months, and 29 days of total service for pay with 31 years, 11 months, and 29 days of total service for retired pay. h. His ARNG Annual Statement, dated 21 January 2022 shows he completed 31 years, 11 months, and 29 days of credible service for retired pay. 3. The applicant provides a copy of his DD Form 2656, dated 4 January 2022, which shows: * he was married to and he had eligible dependents under the plan (SBP). * Section X (SBP Election), item 34 (Beneficiary Categories), shows he marked block g (I Elect Not to Participate in SBP). * The applicant signed the DD Form 2656 on 4 January 2022; however, his spouse signed her concurrence on 21 December 2021, before the applicant made his selection to decline coverage. * The spouse had her signature notarized on 4 January 2022. 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. a. The evidence shows, the applicant, a retired CW5, remarried his current spouse on 28 May 2014. The applicant and concurring spouse signed the DD Form 2656 with the expressed purpose to not participate in the SBP in anticipation of his 18 January 2022 retirement. All aspects of the form were appropriately populated with the sole exception of entering “2021-12-21” in the date signed field (41(c)), which he advocated was a typographical error as it should have read “04 January 2022”. Because of this error, DFAS has been collecting monthly premiums that the applicant requests to stop. Anecdotally, the applicant does not request reimbursement for past paid premiums. b. The applicant was previously married to his former spouse (FS). They married on 29 Mary 1993 and divorced 20 May 2014. As part of their divorce settlement, the parties reached an accord as it pertained to the applicant’s then-future SBP benefits with the following nebulous statement, “Survivor benefits as available at her own expense”. There are no other associated court documents amending or defining their then-intent. Nevertheless, it exists therefore enabling the former spouse some right, which she may or may not be aware of that affords her the opportunity to exercise and therefore must be considered an interested party. As supposition, the past premiums may be ‘handled’ by the former spouse in accordance with the divorce decree. c. The Board notes that the applicant has a number of ways to withdraw from SBP participation. This includers exercising the NDAA 2023’s SBP withdrawal application. The FY2023 NDAA SBP Open Season began on 23 December 2022 and ends on 1 January 2024. Alternatively, the applicant may provide a court sanctioned pleading removing the from spouse from her SBP interest, then a more favorable result could be reached. For that reason, the Board determined it need not be involved as a possible litigant to a potential future claim. 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. 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. 2. 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. 3. Public Law 96-402, enacted 9 October 1990, provided 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 SBP by submitting a request to discontinue participation in the Plan to the Secretary concerned. Any such person's participation in the Plan shall be discontinued effective on the first day of the first month following the month in which a request is received by the Secretary concerned. 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 third 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 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. 6. The 2023 National Defense Authorization Act (NDAA) Survivor Benefit Plan (SBP) Open Season: Congress provided for a Survivor Benefit Plan Open Season in the 2023 National Defense Authorization Act (NDAA), signed by the President on December 23, 2022 The SBP Open Season begins on December 23, 2022 and ends on January 1, 2024. The SBP Open Season allows for retirees receiving retired pay, eligible members, or former members awaiting retired pay who are currently NOT enrolled in SBP or RCSBP (Reserve Component Survivor Benefit Plan) to enroll. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220007422 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1