IN THE CASE OF: BOARD DATE: 16 February 2023 DOCKET NUMBER: AR20220008337 APPLICANT REQUESTS: * correction of her records to show she declined participation in the Survivor Benefit Plan (SBP) * 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 Provisions of Title 10, U.S. Code, Section 1552). FACTS: 1. The applicant states she declined SBP upon separation and the paperwork was completed incorrectly. She requests termination of SBP premium payments. 2. Headquarters, U.S. Army Garrison, Fort Carson, Orders 295-0009, 22 October 2018, released her from assignment and duty by reason of physical disability effective 26 December 2018 and placed her on the Temporary Disability Retired List effective 27 December 2018. 3. The Defense Finance and Accounting Service Retirement and Annuity Pay Office provided the DD Form 2656 (Data for Payment of Retired Personnel) completed by the applicant on 6 November 2018. She indicated she was married and elected not to participate in the SBP. The DD Form 2656 was signed and properly witnessed; however, Part V (Spouse SBP Concurrence) did not contain the spousal concurrence required for a valid election for declination of the SBP. 4. She retired on 26 December 2018. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 4 years, 6 months, and 14 days of total active service. 5. Headquarters, U.S. Army Physical Disability Agency, Order D 237-20, 23 August 2021, removed her from the Temporary Disability Retired List effective 25 August 2021 and permanently retired her due to physical disability on the following date. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found relief is not warranted. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. The applicant has not provided any documentation from her spouse in which her spouse confirms she concurs with the applicant’s decision to decline SBP. Spousal concurrence is required by law, and the Board determined relief cannot be granted without a signed, notarized statement from the applicant’s spouse clearly stating her spouse’s concurrence with the decision to decline SBP. 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 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 Department of Veterans Affairs 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 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 (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. 6. 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. 7. 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) AR20220008337 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1