IN THE CASE OF: BOARD DATE: 20 December 2023 DOCKET NUMBER: AR20230006157 APPLICANT REQUESTS: * correction of his records to show he declined participation in the Survivor Benefit Plan (SBP) with spousal concurrence at the time of his retirement from active duty by reason of permanent disability * 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) * Self-authored Letter of Explanation, 13 February 2023 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 11 April 2022 * DD Form 2656 (Data For Payment of Retired Personnel), 11 April 2022 * Spouse SBP Election Concurrence Statement, 18 April 2022 * Defense Finance Accounting Service (DFAS)-Cleveland Form 1077 Form (SBP Withdrawal Consent), 21 June 2022 FACTS: 1. The applicant states he was assigned to Fort Gillam Enclave in Forest Park, GA, while serving in the U.S. Army Reserve on active-duty orders. His wife and son stayed at their home in Jacksonville, FL, during this period. He was issued orders to report to Fort Gordon, GA, for retirement processing effective 11 April 2022. In preparation for retirement, he completed the Army Career and Alumni Program training through Fort Gordon. He learned about the SBP during that training. The training did not indicate that his wife needed to be present at out-processing; however, he and his wife discussed the SBP as well as other benefits prior to his retirement date. a. They both currently receive a pension from their employment with the Jacksonville Sheriff's Office with survivor benefits upon the death of each of them. Upon his death, his wife will receive a large percentage of his Sheriff's Office pension in addition to her own pension benefit. Additionally, they continued his $400,000 military life insurance policy through the Veteran's Group Life Insurance with his wife as the beneficiary. They both agreed his wife will be well taken care of upon his passing and they should decline the SBP coverage. b. When he reported to Fort Gordon on 11 April 2022, his orders only gave him 1 day to out-process, although his out-processing actually took 2 additional days. He met with a Retirement Services Officer (RSO), Ms. , to begin out-processing. The RSO inquired as to why his wife was not there. He told her the training he received did not indicate his spouse's presence was required. The RSO then realized he had received the wrong training slides. She determined he had received the "Reserve" slides that do not indicate the spouse should be present. She informed him that the "Active Duty" slides that he should have received would have informed him that his spouse needed to be present during out-processing. The RSO gave him the DD Form 2656 to complete for the SBP. He signed it, declining the SBP as he and his wife previously agreed. He explained to the RSO that he and his wife had discussed the SBP prior to his out- processing and told her the reason for declining the Plan. He also explained that had he known of the need for his spouse to be present, she would have made arrangements to be there during his out-processing. At that point, the RSO contacted his spouse telephonically to confirm verbally that his wife agreed to declining the SBP. The RSO informed him and his wife during that telephone call that she would mail the form to his spouse since the form was not available online. The RSO instructed his wife to sign the form, get it notarized, and return the original via mail. The RSO stated that when she received the original form via mail from his wife, she would forward it appropriately. She also insisted that it would not be a problem since he had not been informed that his wife needed to be present for his out-processing. c. His spouse received the form in the mail a week later on 18 April 2022. That afternoon, she signed the form confirming that she concurred with his declination of the SBP, had the form notarized, and mailed the form back to the RSO the same day. He contacted the RSO a week later and she confirmed she had received the notarized SBP form and had forwarded it to update his paperwork. On 9 May 2022, he received a bill for the SBP. He immediately called the RSO and she assured him that she had submitted the form and was waiting for DFAS to contact her about his removal from the Plan. She recommended that he contact DFAS just in case they had made an error. d. On 12 May 2022 he called DFAS. DFAS asked him to fax the form completed by his wife so they could review the form. He called DFAS several times over the next several weeks and he spoke to a supervisor on two occasions. Each time he was told to wait, that the form was being reviewed. Each time he spoke to someone, that person agreed that he should not be charged for the SBP premiums, but they were unable to resolve the issue themselves. e. In June 2022, he contacted DFAS again and DFAS told him that he needed to complete the Withdrawal Consent form due to the fact that he was medically retired with 100-percent disability. He received a notice in the mail that the Withdrawal Consent form had been denied. During that time, he continued to receive monthly bills for the SBP coverage. 2. He and married on. 3. Following prior enlisted service in the U.S. Marine Corps, he enlisted in the U.S. Army Reserve on 21 May 2010. 4. U.S. Army Human Resources Command Orders R-01-480652, 10 January 2014, ordered him to active duty in an Active Guard Reserve status for a period of 3 years with a reporting date of 10 February 2014. 5. The DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) shows a PEB convened at Joint Base San Antonio, TX, on 6 October 2021 to determine his medical fitness for continued service in the Army. The PEB determined he was physically unfit and recommended a disability rating of 80 percent and his placement on the Permanent Disability Retired List. 6. He did not complete 20 qualifying years of Reserve service for Non-Regular (Reserve) retired pay and he was not issued a Notification of Eligibility for Retired Pay at Age 60. 7. U.S. Army Human Resources Command Orders 027-0008, 27 January 2022, released him from assignment by reason of permanent physical disability and placed him on the Retired List in the rank of sergeant first class effective 12 April 2022. 8. On 11 April 2022, he retired from active duty in the rank/grade of sergeant first class/ E-7 by reason of permanent disability. His DD Form 214 shows he completed 15 years, 6 months, and 9 days of total active service and 3 years and 5 months of inactive service. 9. His DD Form 2656, 11 April 2022, shows in: a. Part III (SBP), Section IX (Dependency Information): * item 29 (Spouse) – with marriage date of 17 October 1998 * item 32 (Dependent Children) – no dependent children b. Section X (SBP Election), item 34 (SBP Beneficiary Categories) – he placed an "X" in block g (I elect not to participate in SBP); c. Part IV (Certification) – he signed the form on 11 April 2022 and his signature was witnessed on the same day; and d. Part V (Spouse Concurrence): * item 41 (Spouse) – blank * item 42 (Notary Witness) – blank 10. On 18 April 2022, his spouse completed a Spouse SBP Election Concurrence Statement acknowledging she concurred with his election to decline SBP coverage. 11. On 21 June 2022, he completed a DFAS-Cleveland Form 1077 wherein he requested to withdraw from the SBP. He and his spouse signed the form on 21 June 2021. 12. On 1 July 2022, DFAS notified him that his request to withdraw from the SBP could not be fulfilled at this time. Public Law 96-402 allows a member to discontinue participation in the SBP if he/she suffers from a service-connected disability rated by the Department of Veterans Affairs (VA) 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 immediately following the date of release from active duty. The VA rated him 100-percent disabled effective 1 May 2022; thus, he is unable to withdraw from the SBP at this time. 13. On 29 September 2022, DFAS responded to his Congressional representative, stating: a. The law states, every retiree who is married or has children at the time of retirement will automatically be covered under the SBP at the maximum rate, unless the retiree elected otherwise before retirement or his/her DD Form 2656 (Data for Payment of Retired Personnel) is invalid. b. Included with the applicant's retirement orders was his DD Form 2656 declining SBP coverage for his spouse. The applicant signed the form as of 11 April 2022; however, it did not include the required spousal concurrence signature or a notary public's signature and stamp, making it an invalid election. c. On 12 May 2022, DFAS received a signed and notarized spousal concurrence dated 18 April 2022. Because his spouse signed the spousal concurrence after his retirement date, it also made it an invalid request. d. DFAS established the applicant's SBP coverage as spouse-only coverage effective his date of retirement. e. On 23 June 2022, the applicant requested to withdraw from the SBP based on his VA disability rating of 100 percent. Public Law 96-402 provides that he may only withdraw if he has suffered from a service-connected disability rated by the VA as totally disabling after a continuous period of at least 10 years or a continuous period of at least 5 years from date of release from active duty. The applicant is not eligible to withdraw under these terms at this time. BOARD DISCUSSION: 1. 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 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 and available military records, the Board determined the applicant medically retired from the Army Reserve on 11 April 2022. The record shows on the DD Form 2656 the applicant completed as part of his retirement process, date 11 April 2022, to decline participation in the SBP. The applicant’s file contains a notarized statement signed by his spouse, dated 18 April 2022, which states she concurs with the applicant’s election to decline SBP coverage. The Board noted, the applicant’s record also shows a SBP withdrawal consent form dated 21 June 2021 signed by his spouse and notarized. 2. The Board determined the applicant was misinformed during his ACAP training by receiving the incorrect slides which indicated that his spouse needed to be present for his retirement out-processing. The Board agreed, the applicant at no fault of his own attempted several times to correct the error and decline his SBP election. Furthermore, the Board determined based on the evidence, it was clear the intent of the applicant and his spouse was to decline SBP at the time of his retirement. Based on this the Board granted relief to terminate his Survivor Benefit Plan (SBP) enrollment and reimburse the applicant all previous payments made. ? 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 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 he properly declined the Survivor Benefit Plan (SBP) on 18 April 2022, with proper spousal concurrence, and his election was received and processed in a timely manner by the appropriate DFAS office. Such relief should result in the repayment of any previously paid SBP premiums. 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 very specific 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. Public Law 95-397, enacted 30 September 1978, established the Reserve Component Survivor Benefit Plan (RCSBP). The RCSBP provided a way for Reserve Component members who qualified for Non-Regular (Reserve) retirement but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60. The RCSBP automatically converts to SBP upon retirement. 3. Public Law 96-402, enacted 9 October 1980, provides that any person who has elected to participate in the SBP and who is suffering from a service-connected disability rated by the VA 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 to the Secretary concerned. Any such person's participation in the SBP shall be discontinued effective on the first day of the first month following the month in which a request under this paragraph is received by the Secretary concerned. Effective on such date, the Secretary concerned shall discontinue the reduction being made in such person's retired pay on account of participation in the SBP. 4. Title 10, U.S. Code, section 1448, requires notice to a spouse if a member elects not to participate in the SBP. The statute also provides 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. 5. 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. 6. 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. 7. Department of Defense Instruction 1332.42 (Survivor Annuity Program Administration) states a member may elect to discontinue participation by submitting a DD Form 2656-2 (SBP Termination Request) 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230006157 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1