IN THE CASE OF: 
BOARD DATE: 11 October 2023 
DOCKET NUMBER: AR20230011081 

APPLICANT REQUESTS: in effect, cancellation of the applicant's Survivor Benefits Plan (SBP) debt, or, in the alternative, the voiding of the Board's previous decision to show he elected spouse SBP coverage prior to his 31 July 2013 retirement. 

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 

•DD Form 149 (Application for Correction of Military Record)

•Defense Finance and Accounting Service (DFAS) letter with associated SBPaudit

•Applicant's letter to DFAS

•Army Board for Correction of Military Records (ABCMR) Docket NumberAR20170014550

•ABCMR Docket Number AR20210012100 with applicant's explanation ofhighlighted sections in the record of proceedings (ROP)

•Twelve emails between the applicant and the Army Review Boards Agency(ARBA)




FACTS: 

1.Incorporated herein by reference are military records, as were summarized in theprevious consideration of the applicant's case by the ABCMR in Docket NumberAR20210012110, on 12 May 2022.



2.The applicant states, in effect, he first asked the Board to correct his SBP election in2014. More than 8 years later, the Board finally took action, and his spouse's SBPcoverage was reinstated; however, in the interim, the delay created a sizeable debt.DFAS is now requiring him to pay $29,624.32, which equates to all the premiums hewould have paid, had he been in the program from his July 2013 retirement datethrough February 2023.



a.The applicant declares, "I strongly believe this debt should be removed/canceleddue to the ABCMR's mishandling of my case from April 2014 to March 2021 (7 years), in which the Board had me confused with a E-4 Soldier with the same first and last 





name as mine and ended up sending me his Board Results. After which, an additional 1 year and 7 months was added for me to have to re-apply and have the Board process my claim (a total of over 8 1/2 years)." 

b.The applicant asks the Board to read his April 2023 letter to DFAS's letter; in theletter, he provides a full explanation of his case and includes supporting documents. He points out he is a disabled Veteran on a fixed income and having to repay such a significant debt would create a financial hardship. 




3.The applicant provides:



a.DFAS letter, dated 14 March 2023, with an associated audit of the applicant'sSBP account. The letter states the ABCMR corrected the applicant's records to show he elected to add spouse SBP coverage, and the election subsequently generated a debt of $29,624.32. The debt's timeframe was 1 August 2013 through 28 February 2023. 




b.Applicant's 4 April 2023 letter to DFAS, in which he requests DFAS to remove thedebt and details the problems he has encountered in trying to reinstate his spouse's SBP coverage. 




(1)In 2014, the Department of Veterans Affairs (VA) listed him as deceased; theapplicant was able to get his status corrected, but he then realized his wife did not have SBP coverage. 





(2)The applicant applied to the ABCMR, requesting SBP coverage for hisspouse, and, for 7 years, and through numerous emails and phone calls, he and his spouse continuously reached out to the ABCMR to obtain the status of his request. The ABCMR responded with, "your case is in the final stages of processing before consideration by the Board" or "I cannot provide a specific timeline for completion," but "you will be notified directly once a decision has been rendered and finalized." 





(3)Finally, in 2017, an ARBA Congressional Liaison and Inquiries (CLI) StaffAction Control Officer (SACO) emailed the applicant a copy of another former Soldier's Board results. After the applicant pointed out the error, the CLI SACO apologized and asked the applicant to delete the other individual's documents. The applicant asserted, "Once again this major error was detrimental to my case, which only added additional wasted time to an already too long timeline for completion." 





(4)In February 2022, an ARBA Case Management Division (CMD) analystresponded to one of the applicant's many emails and stated she was screening his case; she indicated she needed a copy of his marriage certificate; a copy of the DD Form 2656 (Data for Payment of Retired Personnel) completed prior to the applicant's retirement; and a DD Form 2656-6 (SBP Election Change Certificate). Because it has 






been almost 10 years since his retirement, he could not locate the DD Form 2656, but he advised the CMD analyst that all the documents she was requesting had already been sent to the CLI SACO. When the CMD analyst failed to respond to the applicant, he tried to call her but, after several attempts, he was unable to reach her. 

(5)On 14 October 2022, an ARBA Customer Service Representative emailed anapology for the issues and advised him that a technician would "push" his case to the "Promulgation Department"; the ABCMR would then notify him of the Board's decision. On 31 October 2022, ARBA sent the applicant an email announcing the Board had favorably decided his case and forwarded their decision to DFAS. 





(6)The applicant concluded his letter stating, "Based on my various interactionsand the lengthy time it has taken to process my one request with the ABCMR, I am very certain that my case was mishandled. I also know my personal documents were misplaced and or incorrectly filed. The apologies that I have received throughout the years, along with the various emails, phone calls, and documentation furthermore substantiates the miscarriage of justice and due process that my wife and I received. This debacle of my case as well as the other service member's personal information (PII) that I received very much speaks volumes as to why we are requesting that this SBP 'back pay' debt be totally cancelled." 





c.The applicant submits a copy of the ROP for ABCMR Docket NumberAR20210012100, and he explains the highlighted sections as follows: 




(1)First, the FACTS section states that he did not file his application withing the3-year timeframe provided in Title 10 (Armed Forces), United States Code (USC). Thisis incorrect in that he sent his first request 11 April 2014 (less than a year after hisretirement).





(2)Paragraph 4 of the ROP acknowledges the applicant's April 2014 request;however, it then claims ARBA sent him a letter stating he had not provided sufficient evidence to support his request and asking him to resubmit his application with copies of his marriage license and DD Form 2656. Paragraph 4c states, "There is no evidence showing the applicant complied with this request." This paragraph is wrong because he sent the requested documents three times: in April 2014, in July 2021, and again, on 27 July 2021. 





4.A review of the applicant's service record reveals the following:



a.On 6 May 1985, the applicant enlisted into the Regular Army; after fourimmediate reenlistments and the completion of sufficient years of service, the applicant applied for retirement and was approved in or around November 2012. 





b.On 16 May 2013, the applicant completed a DD Form 2656:




(1)Section VI (Federal Income Tax Withholding Information), block 14 (Marital





Status), the applicant checked "Married"; (2) Section VIII (Dependency Information), block 22 (Spouse), he listed       with a marriage date of 31 August 1985; 











(3)Section VIII, block 25 (Dependent Children), he listed , daughter;(4)Section IX (SBP Election), block 26 (Beneficiary Category(ies), he placed an"X" next to the statement "I elect not to participate in SBP" and an "X" next to the statement "I do have eligible dependents under the plan"; 





(5)Section XI (Certification), block 30 (Member). "...Also, I have been counseledthat 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." On 16 May 2013, the applicant signed the form, and an SBP Counselor witnessed his signature. 





(6)Section XII (SBP Spouse Concurrence), block 32 (Spouse). "I hereby concurwith the Survivor Benefit Plan election made by my spouse. I have received information that explains the options available and the effects of those options. I know that retired pay stops on the day the retiree dies. I have signed this statement of my free will." On 16 May 2013, the SBP Counselor witnessed and notarized the spouse's signature. 





c.On 31 July 2013, the applicant honorably retired; his DD Form 214 (Certificate ofRelease or Discharge from Active Duty) shows he completed 28 years, 2 months, and 25 days of net active-duty service. 




d.On 11 April 2014, the applicant petitioned the ABCMR, requesting a change inSBP benefits. 




(1)The applicant argued, when he and his spouse signed the DD Form 2656,they both were under the impression they were declining life insurance; they only realized their mistake after speaking with DFAS and several VA representatives. If the Board approved his request, the applicant affirmed he would pay the back premiums. 





(2)On 2 May 2014, ARBA administratively closed the applicant's request withoutBoard consideration or action; ARBA stated, "A review of your application indicates you have not provided sufficient evidence to support your request." The letter asked that the applicant resubmit his request with copies of his marriage certificate, DD Form 2656, and proof of his spouse's notarized concurrence statement, showing she had 


























acknowledged her understanding that the cancellation of SBP might not be in her best interests. e. On 15 July 2021, the applicant reapplied to the Board, asking to reinstate his wife's SBP coverage. (1) The applicant stated, "I was informed that my wife was no longer covered when my record had me listed as deceased and then corrected. This was not a change that me nor my wife made and have been trying to have corrected since 2014. It would be unfair knowing that my spouse would not benefit from the sacrifices that we both made during my active-duty service of over 28 years. Therefore, I request that this error/ unjust be corrected to show   (applicant's spouse) as the sole beneficiary in the event of my death for the SBP." In support of his request, the applicant submitted a DD Form 2656-6 and indicated his wife would be the sole SBP beneficiary. (2) On 12 May 2022, the Board granted the applicant's request and directed DFAS to show the applicant had elected SBP coverage for his spouse, based on the full amount of his retired pay, and that he did so prior to his 31 July 2013 retirement. BOARD DISCUSSION: 

1.After reviewing the application, all supporting documents, and the evidence foundwithin the military record, the Board found that relief was not warranted. The Boardcarefully considered the applicant's record of service, documents submitted in supportof the petition and executed a comprehensive review based on law, policy andregulation. The Board found no error or injustice occurred when the ABCMR consideredthis case in 2022 and granted full relief to the applicant. The applicant had requested acorrection of the record to show he opted into SBP prior to retirement in 2013. Healleged he mistakenly opted out (with the concurrence of his spouse) because he wasconfused about whether it was life insurance or pension benefits. The Board found hisaccount to be credible and determined an error or injustice occurred in 2013 when hewas not enrolled in SBP at retirement. The Board corrected the record to show he optedinto SBP in 2013 but noted it would result in a significant debt. As a result of thecorrection, the applicant now has a debt in the amount of $29,624.32 for the past duepremiums.



2.The Board considered the applicant’s current request seeking waiver of the debt withcontinued participation in SBP. The Board is authorized to correct Army records incases of error or injustice. Accordingly, the Board can correct records to show theapplicant’s election to participate in SBP but it is the Defense Finance AccountingService (DFAS) that resolves claims on the basis of the corrected military record andcomputes the amount due. The Board lacks the authority to direct waiver of a debt thatDFAS calculated by applying pertinent laws and regulations to a corrected record.




3.Next, the Board considered whether to further correct the record to show, again,that the applicant had not elected SBP at retirement. This correction wouldretroactively terminate the applicant’s participation in SBP and, as a result, theapplicant would no longer owe the debt. The Board determined, however, that apreponderance of the evidence did not show an error or injustice occurred when theABCMR acted on the applicant’s behest and granted relief. The prior decision allowedthe applicant to participate in a plan that will provide continuing retirement paymentsto applicant’s spouse if he predeceases her. The applicant was the one who sought toparticipate in such a plan and no error or injustice occurred when his record wascorrected to show he elected participation and was charged for it.





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 Board found 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 to amend the decision of the ABCMR set forth in Docket Number AR20210012110, on 12 May 2022. 







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 SBPprovided that military members on active duty could elect to have their retired payreduced to provide for an annuity after death to surviving dependents. An election, oncemade, was irrevocable except in certain circumstances. Elections are made bycategory, not by name. The election must be made before the effective date ofretirement or coverage defaults to automatic spouse coverage. Since its creation, it hasbeen subjected to a number of substantial legislative changes.



2.Title 10, USC, section 1448 (Application of (SBP) Plan), required notice to a spouseif 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, requiredwritten concurrence by the spouse in a member's decision to decline the SBP or electspouse coverage at less than the full base amount.



//NOTHING FOLLOWS//