IN THE CASE OF: BOARD DATE: 20 September 2023 DOCKET NUMBER: AR20220009068 APPLICANT REQUESTS: in effect, termination of his Survivor Benefit Plan (SBP) participation and reimbursement of any premiums collected APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs Summary of Benefits * Letters to and from the Defense Finance and Accounting Service (DFAS) * DD Form 2656-2 (SBP Termination Request), 2 February 2023 FACTS: 1. The applicant states there was an error made at the time of discharge (regarding his participation in the SBP). This has led to financial difficulties for himself and his family. He can’t keep up with the payment of monthly SBP costs. 2. Review of the applicant’s service records shows: a. The applicant and his spouse were married on 24 June 2017. b. The applicant enlisted in the Regular Army on 7 March 2016, holding military occupational specialty 92W, Water Treatment Specialist. He reenlisted on 15 August 2018 and on 19 November 2019. He held the rank/grade of sergeant (SGT)/E-5. c. On 5 January 2022, an informal physical evaluation board (PEB) convened and found his medical conditions unfitting. The PEB recommended an 80% combined disability rating and his disposition as permanent disability retirement. The applicant concurred. d. On 11 January 2022, he underwent SBP counseling, and with his signatures, he acknowledged that he received SBP counseling and understood SBP cost, categories, beneficiaries, revocation, termination, and other aspects of the SBP. e. On 9 February 2022, in preparation for his upcoming disability retirement, he completed a DD Form 2656 (Data for Payment of Retired Personnel). He indicated he was married to and they have no dependent children. * he elected SBP coverage for “spouse” only, based on the full gross pay * he and a Retirement Services Office/Soldiers for Life official authenticated this form with their signatures on 9 February 2022 * although not required (since he elected full spouse SBP), his spouse concurred with his election by signing this form and having her signature notarized f. The applicant retired on 28 March 2022 by reason of disability, and he was placed on the retired list in his retired grade of SGT/E-5 on 29 March 2022. 3. On 20 May 2022 (after retirement), he wrote to DFAS requesting to terminate or cancel the SBP. He indicated at the time of his retirement, the personnel who did his DD Form 2656 at the time, misunderstood his request not to elect coverage for SBP. He and his spouse were told that for them not to participate in the SBP program, they would need to go to their local retirement office branch and get part of the DD Form 2656 notarized, which they did with the aim that they were electing not to participate in the SBP program. When he received his first retirement pay, he noticed and was surprised that SBP amount was deducted from his pay. He immediately contacted the HR personnel who completed the DD form 2656. They emailed him exactly what they sent to DFAS. The DD Form 2656 they sent to DFAS indicated that he elected to participate in the SBP which was not his original intent. So, there seems to be misunderstanding between the HR personnel and him when the DD Form 2656 was filled. 4. On 27 July 2022, DFAS responded by saying they could not process his SBP request to decline coverage because the DD Form 2656 they received on 5/25/22 is a modified copy of the original DD 2656 form they received on 4/16/22 on which he elected spouse coverage. 5. He provides a DD Form 2656-2 (SBP Termination Form), a form that is used to voluntarily discontinue participation in the SBP and alerts the member that in accordance with section 1448a of Title 10, United States Code, a participant in the SBP may elect to discontinue participation during the 25th through the 36th month after commencement of payment of retired pay. * he elected to discontinue participation and signed this form on 12 January 2023 (after retirement, and outside the authorized 25-36 month after commencement of payment of retired pay) * his spouse signed this form, with her signature notarized, agreeing with his election BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial 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 law, policy and regulation. One outcome was to deny relief based on the applicant signing his SBP forms prior to retirement with complete understanding of his options. However, upon review of the applicant’s petition, available military records, the Board determined the applicant signed his DD Form 2656 at the time of his pending retirement along with his spouse signed notarized concurrence. The Board found no error in the processing of his SBP. Furthermore, the Board noted in the record the applicant’s submission of his termination request and his spousal concurrence, which is outside the regulatory 25 – 36-month window. However, the Board agreed based on the applicant’s claimed confusion, partial relief is warranted to terminate his SBP coverage. The Board found reimbursement of any premiums collected is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : :X DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial 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 28 March 2022, with proper spousal concurrence. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to reimbursement of any premiums collected. 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 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 very specific circumstances. The election must be made before the effective date of retirement or coverage defaults to automatic spouse coverage. 2. Title 10, U.S. Code, section 1448(a)(3)(A), requires spousal concurrence in any election not to participate in the SBP, to provide an annuity for a spouse at less than the maximum level, or to provide an annuity for a dependent child but not for the member's spouse. 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. 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 includes an SBP open season. The SBP open season began on 23 December 2022 and ends on 1 January 2024. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220009068 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1