IN THE CASE OF: BOARD DATE: 26 October 2023 DOCKET NUMBER: AR20220011866 APPLICANT REQUESTS: * termination of her Survivor Benefit Plan (SBP) * a personal appearance hearing before the Board via video or 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) * Self-authored Letter, 14 September 2022 * DD Form 2656-2 (SBP Termination Request), 27 July 2018 * Defense Finance and Accounting Service (DFAS) U.S. Military Retired Pay Letter, 13 September 2018 FACTS: 1. The applicant states she submitted a DD Form 2656-2 on 27 July 2018 and received confirmation that her SBP would be terminated. However, in November 2021 she received another letter that her original form requesting termination was incorrect and the deadline to terminate her SBP had passed. 2. The applicant enlisted in the Regular Army on 8 October 2003. She was promoted to the rank/grade of staff sergeant/E-6 effective 1 January 2011. 3. Her records contain a DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) showing a PEB convened at Joint Base Lewis-McChord, WA, on 14 January 2016 to determine her medical fitness for continued service in the Army. The PEB determined she was physically unfit and recommended a disability rating of 50 percent and her placement on the Temporary Disability Retired List (TDRL) with reexamination during July 2017. 4. Headquarters, U.S. Army Garrison Fort Bliss, Fort Bliss, TX, Orders 076-0701, 16 March 2016, retired her by reason of temporary physical disability effective 28 April 2016 and placed her on the TDRL effective 29 April 2016 with a disability rating of 50 percent. 5. She retired on 28 April 2016 in the rank/grade of staff sergeant/E-6 by reason of temporary disability (enhanced). Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 12 years, 6 months, and 21 days of net active service during this period. 6. Her records are void of a DD Form 2656 (Data for Payment of Retired Personnel) showing her SBP election at the time of her placement on the TDRL. 7. The DA Form 199, 7 November 2017, shows another PEB convened at Joint Base Lewis-McChord, WA, to reexamine her unfitting condition. The PEB determined she was physically unfit and recommended a disability rating of 30 percent and her placement on the Permanent Disability Retirement List (PDRL). She concurred and waived a formal hearing of her case on 18 December 2017. 8. U.S. Army Physical Disability Agency Orders D-038-56, 7 February 2018, removed her from the TDRL and placed her on the PDRL in the rank of staff sergeant with a disability rating of a 30 percent effective 7 February 2018. 9. Her DD Form 2656-2 shows she and her husband, , requested termination of her SBP coverage with their signatures on 27 July 2018. 10. The DFAS U.S. Military Retired Pay letter, 13 September 2018, informed her that her SBP spouse coverage was terminated per her request effective 13 September 2018. 11. She stated she received a DFAS letter, 21 November 2021, informing her that her original form requesting termination was incorrect and the deadline to terminate her SBP had passed; therefore, her SBP coverage was still in effect. This letter is not in evidence for review. 12. The email correspondence from a DFAS pay technician (Army Review Boards Agency Assistance), 27 September 2023, notes the applicant currently has SBP spouse coverage since retirement because her DD Form 2656 was invalid due to missing spousal concurrence. She subsequently submitted a DD Form 2656-2 on 27 July 2018 that was deemed invalid since she was not yet eligible to terminate her SBP coverage. She further submitted a DD Form 2656-6 (SBP Election Change Certificate) to discontinue SBP; however, it is the incorrect form to terminate SBP coverage. She currently has the option to discontinue SBP during the open season in effect until 31 December 2023. The DFAS database contains: a. her DD Form 2656, 21 March 2016, showing in: (1) Section I (Pay Identification), block 3 (Retirement/Transfer Date), 29 April 2016; (2) Section VIII (Dependency Information), block 22 (Spouse), she listed with a marriage date of 14 February 2011; (3) Section IX (SBP Election), block 26 (SBP Beneficiary Categories), she placed an "X" in the box by the statement: "I elect not to participate in SBP"; (4) Section XI (Certification), block 30 (Member) (Also, I have been counseled that I can terminate SBP participation, with my spouse's written concurrence, within one year after the second anniversary of commencement of retired pay. However, if I exercise my option to terminate the SBP, future participation is barred.), she signed the form on 21 March 2016. An SBP Counselor at Fort Bliss, TX, signed the form on the same date; and (5) Section XII (SBP Spouse Concurrence) (Required when the member is married and elects child(ren) only coverage, does not elect full spouse coverage, or declines coverage. The date of the spouse's signature in item 32b MUST NOT be before the date of the member's signature in item 30b, above). The spouse's signature MUST be notarized.), this section does not contain her spouse's signature and thus was not notarized; b. the Army Retirement Services Office SBP Retiring Soldier Counseling Statement, 21 March 2016, showing an SBP Counselor at Fort Bliss informed her of the SBP Program rules and benefits; c. her DD Form 2656-2 showing she and her husband, , requested termination of her SBP coverage with their signatures on 27 July 2018; d. her DD Form 2656-6 showing she elected to "Suspend Coverage. She did not identify any conditions that trigger eligibility to change coverage. She signed the form on 6 March 2020 and her signature was witnessed the same date; e. the DFAS letter, 31 May 2019, notifying her that DFAS was unable to process her SBP request for termination of 2 August 2018. The DD Form 2656-2 was invalid due to missing the required witness signature by an SBP counselor or a notary public. DFAS informed her that she has reached her 37th month of receipt of retired pay, making her 25th to 36th-month window to terminate coverage closed. She would need to submit a new form for consideration; and f. the DFAS letter, 10 April 2020, notifying her that DFAS received her completed DD Form 2656-6; however, it is the incorrect form for termination. The correct form for termination is the DD Form 2656-2. DFAS reiterated that the 2 August 2018 form DFAS received was invalid and she had now reached her 47th month of receipt of retired pay, making her 25th to 36th-month termination window closed. Therefore, she would have to submit another form requesting termination. 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 warranted. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. The Board found the evidence confirms the applicant and her spouse did not intend to participate in SBP but failed to submit a timely election to decline SBP, which resulted in a default election for spouse SBP coverage. Based on a preponderance of the evidence, the Board determined the applicant’s record should be corrected to show she elected to decline SBP coverage with her spouse’s concurrence prior to her retirement. As a result of this correction, any SBP premiums she has paid should be returned to her. 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 the evidence presented is 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 she elected to decline SBP coverage with her spouse’s concurrence prior to her retirement. As a result of this correction, any SBP premiums she has paid should be returned to her. 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 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 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, 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. Elections are made by category, not by name. 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. 3. Title 10, U.S. Code, section 1448, required 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. 4. 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. 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 for disenrollment. 6. Department of Defense Instruction 1332.42 (Survivor Annuity Program Administration) states a member may elect to discontinue participation by submitting DD Form 2656-2 during the period that is more than 2 years but less than 3 years after the first date of entitlement to receive retired pay. The member must submit the request no earlier than the 1st day of the 25th month, and no later than the last day of the 36th month from the date of entitlement to retired pay, with spousal concurrence if applicable. A member electing to terminate coverage is not eligible for continuation in the Program; however, the member has 30 days after submitting a request to discontinue participation to revoke the request. 7. Department of Defense Financial Management Regulation 7000.14R, Volume 7B, chapter 4, section 040604, states a member whose record is corrected to a military disability retirement under the Physical Disability Board of Review process and who was married on the retirement effective date will receive automatic full spouse coverage under the SBP unless the member makes an affirmative election for less than full spouse coverage within 90 days of being provided a DD Form 2656. Monthly SBP premiums for automatic or properly elected coverage must be charged from the effective retirement date. If the member was married on the effective retirement date but has since divorced that spouse, the member must still submit a concurrence to elect less than full spouse coverage signed by the person who was the member's spouse on the effective retirement date, unless the whereabouts of the member's now former spouse are unknown and the member submits an affidavit verifying that the former spouse's whereabouts are unknown, along with a copy of the parties' divorce decree. The spouse's concurrence on the DD Form 2656 must be signed on or after the date of the member's signature and otherwise conform to an election regarding spouse coverage. 8. 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 requires 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220011866 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1