IN THE CASE OF: BOARD DATE: 1 March 2023 DOCKET NUMBER: AR20220007762 APPLICANT REQUESTS: * correction of his records to show he declined participation in the Survivor Benefit Plan (SBP) as of the date of his retirement * closure of his direct remittance account with the Defense Finance and Accounting Service (DFAS) APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * U.S. Army Physical Disability Agency Order D 271-26, 28 September 2015 * National Guard Bureau (NGB) Form 22 (National Guard Report of Separation and Record of Service) effective 3 November 2015 * Joint Force Headquarters, Tennessee National Guard, Orders 041-804, 10 February 2016 * Army Review Boards Agency Letter, 7 November 2022 * three SBP/Reserve Serviceman's Family Protection Plan (RSFPP) Premium Invoices, 28 December 2022, 28 January 2023, and 28 February 2023 FACTS: 1. The applicant states he was mistakenly enrolled in the SBP. When he retired, he did not consent for his Physical Evaluation Board Liaison Officer to enroll him in the SBP. He would not have elected this benefit because he is 100-percent service-connected disabled through the Department of Veterans Affairs (VA); therefore, his wife will receive Dependency and Indemnity Compensation when he dies. Since he is not old enough to draw his retired pay yet, he has received invoices for SBP premiums that are gaining interest. 2. On 16 September 2015, an informal physical evaluation board found the applicant physically unfit and recommended a disability rating of 80 percent and his permanent disability retirement. The DA Form 199 (Informal Physical Evaluation Board Proceedings) further reflects:? a. On 17 September 2015, he concurred with the physical evaluation board's recommendations and waived a formal hearing of his case. b. On 30 September 2015, the proceedings were authenticated. 3. U.S. Army Physical Disability Agency Order D 271-26, 28 September 2015, released him from assignment and duty because of physical disability incurred while entitled to basic pay and under conditions that permit his retirement for permanent physical disability. He was placed on the Retired List effective 2 November 2015. (Note: He began receiving retired pay effective 2 November 2015.) 4. His NGB Form 22 shows he was separated from the Tennessee Army National Guard on 3 November 2015 and placed on the Permanent Disability Retired List. 5. On the following dates the applicant received SBP/RSFPP premium invoices showing: * on 28 December 2022, he owed $6,175.42 * on 28 January 2023, he owed $6,195.64 * on 28 February 2023, he owed $6,215.92 6. The Defense Retiree and Annuitant Pay System shows the applicant completed a DD Form 2656-2 (SBP Termination Request) to terminate his participation in the SBP on 28 June 2018. The DD Form 2656-2 was properly signed by the applicant and his spouse, dated, and witnessed. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, 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 determined the applicant terminated participation in the SBP during the one-year window following the second anniversary of the receipt of retired pay. The Board found evidence showing a signed and notarized spousal concurrence and it was clear the intent of applicant and spouse was to decline SBP at the time of his retirement. Based on this the Board granted relief to terminate his Survivor Benefit Plan (SBP) enrollment and correct the record to reflect a declination of SBP participation at retirement. Such a record correction would result in a refund of premiums owed. ? 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 1 November 2015, 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 21 September 1972, repealed the RSFPP and 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. The election must be made before the effective date of retirement or coverage defaults to automatic spouse coverage. Since its creation, it has been subjected to a number of substantial legislative changes. 2. Title 10, U.S. Code, section 1448, requires 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. 3. Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, 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. 4. 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. 5. 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. 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. 6. The DFAS website states direct remittance is only for those retired members who do not receive retired pay from DFAS or who do not receive sufficient retired pay and/or Combat-Related Special Compensation to satisfy the monthly SBP premium. Direct remittance members who choose not to have their SBP payments deducted from their VA pay must remit SBP premium payments. 7. Periodically Congress authorizes an open enrollment season to allow retirees certain changes to their SBP participation or non-participation. The National Defense Authorization Act for Fiscal Year 2023 authorized an open enrollment season from 23 December 2022 through 1 January 2024. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220007762 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1