IN THE CASE OF: 
  BOARD DATE: 5 September 2023 
 
  DOCKET NUMBER: AR20230001554 
 
 
APPLICANT REQUESTS: correction of his records to show he declined participation in the Survivor Benefit Plan (SBP). 
 
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) 

• DD Form 2656 (Data for Payment of Retired Personnel), 21 March 2022 


 
FACTS: 
 
1.  The applicant states he left a box unchecked on his DD Form 2656, 21 March 2022, and was automatically enrolled in the SBP. He has been trying to terminate his SBP since March 2022. He declined the SBP because he is not married and he does not need it for his children. However, he did not check a secondary box. Due to this, he is being billed for SBP premiums. 
 
2.  The applicant and A____ P____ married on 21 June 2011. 
 
3.  County District Court Decree of Dissolution of Marriage and Permanent Orders, 22 March 2018, shows the applicant was granted a divorce from A____ P____ B____. Neither the Dissolution of Marriage nor the Permanent Orders address the SBP. 
 
4.  On 21 March 2022, the applicant completed a DD Form 2656 showing he is not married but has two dependent children. Item 34 (SBP Beneficiary Categories) shows the applicant elected not to participate in the SBP, but he did not annotate whether he had eligible dependents under the plan. The form is signed and dated by the applicant and a witness. 
 
5.  The Defense Retiree and Annuitant Pay System shows the applicant received the Army Retirement Services Office SBP Retiring Soldier Counseling Statement, 21 March 2022, and declined SBP coverage. 
 
6.  On 26 March 2022, the applicant retired by reason of temporary combat-related disability. 
 
7.  The Defense Retiree and Annuitant Pay System shows the applicant completed a DD Form 2656-8 (SBP – Automatic Coverage Fact Sheet) on 17 May 2022 showing he was not married and had two dependent children. 
 
8.  Headquarters, U.S. Army Physical Disability Agency, Orders D192-0017, 11 July 2023, removed the applicant from the Temporary Disability Retired List and permanently retired him with a disability rating of 70 percent. 
 
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 applicant’s contentions, his military records, and regulatory guidance were carefully considered. The evidence shows the applicant made clear on his 21 March 2022 DD Form 2656 that he wished to decline coverage. It is unclear why DFAS enrolled the applicant into SBP and deducted SBP premiums from his retirement pay. The applicant assumes, or perhaps was informed by DFAS, that his failure to check this box is the reason why he was enrolled in SBP despite his declination of coverage. But the box to which the applicant refers is, as the applicant states, a box secondary to the primary box in which the applicant marked an X. This primary box is the choice for “I elect not to participate in SBP.” The secondary box is a Yes / No box next to which reads, “I have eligible dependents under the plan. If ‘Yes’ spouse concurrence is required.” The applicant left this box unchecked. One can understand why the applicant left the secondary box unmarked. At the time of his retirement, the applicant was unmarried and had two dependent children. Consequently, it is understandable that the applicant would not check this box given he had no spouse from which to obtain “spouse concurrence.” It is unreasonable to believe that the reason DFAS enrolled the applicant in SBP against his will was due to his failure to check the secondary box on the DD Form 2656. In an email response back to ARBA, DFAS makes no attempt explain why the applicant was enrolled in SBP despite his clearly manifested intention to remain disenrolled. Based on the totality of the situation and given the fact that the applicant’s intent was clearly not to participate in the SBP, the Board was persuaded by the applicant’s argument and determined that based a preponderance of evidence, an injustice occurred and supported granting him the requested relief. 
 
  
BOARD VOTE: 
 
Mbr 1 Mbr 2 Mbr 3 
 
xx: xx: xx: 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 timely submitted an application electing not to participate in the SBP, prior to his retirement on 22 March 2022 

• The appropriate office timely received and accepted his application to decline enrollment, and if applicable, reimbursing him any premiums collected from his retired pay 


 
  9/5/2023

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, 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. 
 
2.  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. 
 
3.  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 authorized an open enrollment season from 23 December 2022 through 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). 
 
 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//