IN THE CASE OF: BOARD DATE: 22 March 2023 DOCKET NUMBER: AR20220008371 APPLICANT REQUESTS: * cancellation of her 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: a. She enrolled in the SBP, thinking it was a good idea to have coverage if anything happened to her, not realizing what she was actually signing up for. She wants this Plan to stop, as it is accumulating a debt. b. She is single and her dependents are adults. She has difficulty comprehending what she reads at times and only understands a portion before her thoughts tend to trail off due to her post-traumatic stress disorder (PTSD). She honestly does not remember enrolling in this program and was not aware it is for spouses until she received the bill in the mail and until contacting the numbers provided on the bill and having it explained to her. 2. Her DD Form 396-2 (Department of Defense Personnel Security Questionnaire), 15 November 1989, shows her last name as and her maiden name as. Item 10a (Spouse) shows her spouse's name as and a child with a birthdate in. 3. She enlisted in the Regular Army on 15 November 1989. Her DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), 30 January 1990, shows her last name as. 4. Her divorce decree is not in evidence for review. 5. Her DD Form 93 (Record of Emergency Data), 29 November 1993, shows her marital status as "Divorced" and two children with birthdates in 6. Her DA Form 2-1 (Personnel Qualification Record – Part II), last reviewed on 9 September 2000, shows her marital status as "Divorced" and three dependent children. 7. She was ordered to active duty in support of Operation Iraqi Freedom on 10 July 2006. She served in Kuwait/Iraq from 2 October 2006 through 25 September 2007. She was honorably released from active duty to the control of her U.S. Army Reserve troop program unit on 3 November 2007. 8. Her DD Form 93 (Record of Emergency Data), 2 February 2010, shows her marital status as "Single" and her three children with birthdates in 9. Her DA Form 199 (Informal Physical Evaluation Board Proceedings), 14 April 2014, shows he was serving in the U.S. Army Reserve when the physical evaluation board found her physically unfit and recommended a disability rating of 80 percent and permanent disability retirement. Her disability is shown as PTSD. 10. U.S. Army Physical Disability Agency Orders D 125-75, 5 May 2014, released her from assignment and duty because of physical disability and placed her on the Retired List effective 9 June 2014. 11. Her records contain no evidence of a DD Form 2656 (Data for Payment of Retired Personnel). Additionally, there is no evidence indicating the dependency status of her three children at the time of her disability retirement. 12. Her DD Form 2656-8 (SBP – Automatic Coverage Fact Sheet), 18 July 2022, states the principal purpose of the form is to determine the marital and dependency status in order to correctly establish and maintain an accurate accounting of a retired pay account. The form shows in: * item 4 (Are You Married) – she marked "NO" * item 5 (Do You Have Any Dependent Children) – she marked "NO" * item 8 (Signatures) – she electronically signed the form on 18 July 2022 – the form is not signed by a witness 13. The email from a Defense Finance and Accounting Service (DFAS) representative (Reply: SBP), 9 March 2023, states the applicant retired effective 10 June 2014. At this time her SBP is showing automatic spouse coverage because DFAS did not receive the original DD Form 2656 at retirement. DFAS received a DD Form 2656-8 on 19 July 2022, which only shows her as not married with no dependent children at the time of retirement. Her SBP documents were incomplete due to the absence of a witness signature. An information letter was re-mailed to her requesting information at retirement, to include spouse and/or child. 14. The email from the Department of the Army Deputy Chief of Staff, G-1 (SBP Coverage), 14 June 2022, states that according to the Defense Retired and Annuitant Pay System: a. The applicant's current election is "AUTO [automatic]" and she is being charged for "Spouse" coverage since 10 June 2014. b. The applicant should be able to fix this by completing a DD Form 2656-8 to inform DFAS that she did not have an eligible spouse or children if they had aged out prior to 10 June 2014. This issue with this is that she would run into the barring statute for a refund of all money if she paid into the program. It looks like her Department of Veterans Affairs rating changed in 2019, which increased her waiver to a point where DFAS could not deduct the premium costs from her retired pay and she is building a debt. c. She would need to have her record corrected to get around the barring statute for the refund. 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 there was sufficient evidence that an error occurred when the applicant was automatically enrolled in SBP in 2014. Evidence shows the applicant is single and her dependent children have aged out. The Board agreed based on the preponderance of evidence the applicant was not married at the time she medically retired. As such, the applicant was automatically enrolled in SBP erroneously. Therefore, the Board granted relief to correct the record to show the applicant was not married when she retired and entitled to reimbursement of all premiums paid and disenrollment from SBP. 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 the applicant was not married when she retired and should be disenrolled from SBP and entitled to reimbursement of all premiums paid. 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 ABCMR. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record; it is not an investigative body. 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, enacted 21 September 1972, repealed the Retired Serviceman's Family Protection Plan 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. 3. 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. 4. Department of Defense Instruction 1332.42 (SBP) establishes policy, assigns responsibilities, and provides procedures for administration of the SBP Program, Reserve Component SBP Program, Special Survivor Indemnity Allowance and SBP Advisory Group. Section 3 (Covered Participants) states unless a service member chose to reduce or decline coverage before the first day he or she is entitled to retired pay, automatic coverage for maximum spouse, spouse and child coverage, or child-only coverage (if the member is not married but has an eligible dependent child) will be established. A service member or retiree may not revoke his or her decision to participate in the SBP if not revoked before the date on which the person becomes entitled to retired pay. Automatic coverage is also irrevocable. 5. 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 RCSBP 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 RCSBP 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. 6. Title 31, U.S. Code, section 3702, is the 6-year barring statute for payment of claims by the Government. In essence, if an individual brings a claim against the Government for monetary relief, the barring statute states the Government is only obligated to pay the individual 6 years in arrears from the date of approval of the claim. Attacks to the barring statute have resulted in litigation in the U.S. Court of Federal Claims. In the case of Pride versus the United States, the court held that the Board for Correction of Military Records is not bound by the barring act. The Board for Correction of Military Records decision creates a new entitlement to payment and the 6-year statute begins again. Payment is automatic and not discretionary when a Board for Correction of Military Records decision creates an entitlement. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220008371 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1