IN THE CASE OF: BOARD DATE: 20 September 2023 DOCKET NUMBER: AR20230000954 APPLICANT REQUESTS: cancellation of his Survivor Benefit Plan (SBP) debt arising from unpaid premiums. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states upon retirement in 2009, he was not properly counseled and did not sign form electing to enroll into SBP. Therefore, he was automatically enrolled in 2019 (sic., i.e., 2009). He endured a debt of $5,316.63 which has increased to over $6,000.00. He is requesting the debt be waived. 3. Review of the applicant’s service records shows: a. He enlisted in the Regular Army on 1 July 1993 and served through multiple reenlistments, in a variety of stateside or overseas assignments, attaining the rank of staff sergeant (SSG)/E-6. b. Following Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers), he was reduced due to various misconduct, from SSG/E-6 to sergeant (SGT)/E-5 in February 2009 and from SGT/E-5 to specialist (SPC)/E-4 in June 2009. c. On 13 August 2009, an informal physical evaluation board (PEB) convened and found his medical condition unfitting. The PEB recommended a combined disability rating of 50% and placement on the temporary disability retired list (TDRL). d. The applicant and his spouse , were married on 15 August 2009. e. On 21 August 2009, in connection with his upcoming temporary disability retirement, the applicant completed a DD Form 2656 (Data for Payment of Retired Personnel). He indicated: * he was married to on 15 August 2009, and they have 5 dependent children (born in September 2009, August 2001, October 2004, January 2000, and July 1995 respectively) and none is disabled * he elected SBP coverage for spouse and children based on the threshold amount in effect at the time of retirement * he and an SBP counselor authenticated this form with their signatures on 21 August 2009 * his spouse did not sign the SBP election f. He retired on 1 September 2009 due to temporary disability and he was placed on the TDRL on 2 September 2009. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed over 16 years and 2 months of active service. 4. The applicant does not provide any documentary evidence in relation to his contested debt. Likewise, he provides no evidence he corresponded with the “Out of Service Debt” Section of the Defense Finance and Accounting Service or that he has disputed his debt but was denied relief. 5. There is no evidence the applicant cancelled or terminated his SBP election beginning in the 25th month through the 36th month - or the third year - of his retirement. 6. The applicant does not provide documentary evidence in the form of a DD Form 2656-2 (SBP Termination Request) that contains his spouse’s notarized signature consenting to his desire to terminate the SBP. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not 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. Upon review of the applicant’s petition, available military records, the Board found the applicant elected SBP but provided no evidence of a signed notarized signature from his spouse declining SBP coverage. Furthermore, the Board agreed the applicant’s record is void any correspondence from DFAS as to coordination regarding his incurred debt due to his SBP premiums. The Board noted that applicant take advantage of the open season to cancel his SBP coverage. Based on the lack of evidence to support the applicant’s request. the Board denied relief. 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. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, U.S. Code 1448 states that a person who is eligible to participate in the plan under paragraph and who is married or has a dependent child when he becomes entitled to retired pay, unless he elects with his spouse's concurrence, if required, not to participate in the plan before the first day for which he is eligible for that pay, he will be automatically enrolled in the SBP. a. Cancelling in the Third Year of Retirement: Service members may cancel or terminate their SBP election beginning in the 25th month through the 36th month - or the third year - of their retirement. As with declining at retirement, spousal concurrence is required. b. Cancelling or terminating SBP coverage in the third year of retirement is different than Withdrawal from SBP coverage due to VA disability, sometimes referred to as discontinuation based on disability. c. Discontinuing (Withdrawing from) SBP Coverage Due to Qualifying VA Disability: Retirees who meet one of the following two criteria are eligible to discontinue participation in the Survivor Benefit Plan: (1) The retiree has had a service-connected disability rated by the VA as totally disabled for a continuous period of 10 or more years; or (B) The retiree has had a total disability rating from the VA for at least five continuous years immediately following the last date of discharge or release from active duty. d. Discontinuing SBP coverage due to qualifying VA disability (also referred to as withdrawing from SBP coverage due to VA disability) is different than terminating SBP coverage between the 25th and 36th month of retirement. A request to discontinue SBP participation requires the written consent of the beneficiary or beneficiaries. 3. According to the DFAS official website, the normal method of paying for SBP coverage is by an automatic deduction from a retiree’s retirement pay. The vast majority of retired members with SBP coverage pay through this means. It is implemented automatically if you elect SBP coverage at the time you retire. a. Deductions from your Combat-Related Special Compensation (CRSC) Pay: Beginning with the SBP monthly premiums due in April of 2018, DFAS started deducting SBP recurring monthly premiums from CRSC when retired pay is not sufficient to cover the full amount of the monthly premiums. This new deduction is due to a change in the law which requires DFAS to deduct SBP recurring monthly premiums from CRSC. The change in the law only affects SBP recurring monthly premiums, beginning with the monthly premium due in April of 2018. It does not affect past due SBP premium amounts. DFAS is not deducting past due premiums from CRSC pay. Retirees who have past due SBP premiums are still responsible for paying the past due SBP premium amount and any interest accrued through direct remittance. b. This change affects retirees who receive CRSC and previously paid SBP monthly premiums via direct remittance. b. Retirees who currently have SBP premiums deducted from their Department of Veteran Affairs (VA) pay will not be affected. This change will benefit retirees and their survivors by preventing a debt when a retiree forgets to pay the SBP premiums directly. When SBP premiums are not paid during a retiree’s lifetime, it creates a debt which must be repaid from the SBP annuity a survivor receives. 4. 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 says that the government is only obligated to pay the individual 6 years 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 (BCMR) is not bound by the barring act, that the BCMR decision creates a new entitlement to payment and the 6 years starts running over again, and that payment is automatic and not discretionary when a BCMR decision creates an entitlement. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230000954 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1