IN THE CASE OF: BOARD DATE: 5 October 2023 DOCKET NUMBER: AR20230001815 APPLICANT REQUESTS: * correction of his records to show he declined Survivor Benefit Plan (SBP) coverage with spousal concurrence in connection with his permanent disability retirement processing * reimbursement of SBP premiums already paid 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) * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings * Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Orders 343-0200, 9 December 2019 * DD Form 2656-2 (SBP Termination Request), 3 May 2023 FACTS: 1. The applicant states: a. While he was completing paperwork in connection with his physical disability separation from the Army, he was never told about the DD Form 2656 (Data for Payment of Retired Personnel), which is missing from his paperwork. He never completed a DD Form 2656 upon his discharge. He was then automatically enrolled in the SBP without his consent after he was discharged from the Army. When he completed the form to cancel SBP coverage, he was informed that the DD Form 2656 wasn't in his records and he was advised to contact the Army Board for Correction of Military Records (ABCMR). b. It seems highly unjust because he should not have been automatically enrolled in something he knew nothing about in the first place. He was lightly briefed on the SBP via a Microsoft PowerPoint slide presentation while clearing the installation, but he never received any paperwork to enroll or decline SBP coverage. c. The whole process has been troublesome and has caused anxiety and issues in the past. He requests reimbursement of all SBP premium payments deducted from his retired pay. 2. The applicant and married on. 3. He enlisted in the Regular Army on 16 May 2017. 4. On 13 November 2019, the physical evaluation board determined he was physically unfit for continued service and recommended a disability rating of 60 percent and permanent disability retirement. 5. Headquarters, 101st Airborne (Air Assault) and Fort Campbell, Orders 343-0200, 9 December 2019, released him from assignment because of physical disability and placed him on the Retired List in the grade/rank of private first class/E-3 effective 30 January 2020. 6. On 29 January 2020, he retired in the rank/grade of private first class/E-3 by reason of permanent disability (enhanced). His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 1 month, and 29 days of net active service. 7. His DD Form 2656-2, 3 May 2023, shows in: a. Section II (Retired Member Identification), block 3 (Retirement Date), 29 January 2020; b. Section III (Termination Request), he signed the form on 3 May 2023 and his signature was witnessed on the same date; and c. Section IV (Spouse Concurrence), his spouse signed the form on 3 May 2023 and her signature was witnessed on the same date. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, a majority of the Board found relief is warranted. 2. A majority of the Board found it likely that a junior enlisted Soldier being retired for disability may not have been properly informed of the process required to decline participation in SBP. A majority of the Board noted that his spouse has concurred with cancelling SBP coverage and determined the record should be corrected to show he declined participation in SBP prior to his retirement with his spouse’s concurrence. Any SBP premiums he has paid should be returned to him as a result of this correction. 3. The member in the minority did not find the applicant’s claims credible considering that SBP is a long-established program that affects every retiring Soldier. The member in the minority determined his automatic enrollment in SBP was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X : :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :X : 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 he declined participation in SBP prior to his retirement with his spouse’s concurrence. Any SBP premiums he has paid should be returned to him as a result of this correction. 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, 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. Since its creation, it has been subjected to a number of substantial legislative changes. 2. Title 10, U.S. Code, section 1448, requires 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. 3. 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. 4. Public Law 96-402, enacted 9 October 1990, provided that any person who has elected to participate in the SBP and who is suffering from a service-connected disability rated by the Department of Veterans Affairs as totally disabling, and has suffered from such disability while so rated for a continuous period of 10 or more years (or, if so rated for a lesser period, has suffered from such disability while so rated for a continuous period of not less than 5 years from the date of such person's last discharge or release from active duty), may discontinue participation in the SBP by submitting a request to discontinue participation in the Plan to the Secretary concerned. Any such person's participation in the Plan shall be discontinued effective the first day of the first month following the month in which a request is received by the Secretary concerned. 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 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. 6. 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 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). 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230001815 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1