IN THE CASE OF:
BOARD DATE: 24 February 2015
DOCKET NUMBER: AR20140008237
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests cancellation of his Survivor Benefit Plan (SBP) coverage.
2. The applicant states:
* he was awarded the SBP as part of the agreement in the Sabo versus United States lawsuit
* he and his wife decided to terminate the SBP coverage between the 25th and 26th month of coverage
* he and his wife are unable to pay the premiums retroactive to 2003
* the appropriate forms were sent to the U.S. Army Human Resources Command, but the Defense Finance Accounting Service (DFAS) has yet to terminate his SBP coverage
3. The applicant provides:
* email
* Physical Disability Board of Review (PDBR) decisional documents
* sworn statement
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 19 July 2001.
2. Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Orders 335-0003, dated 1 December 2003, directed his discharge with disability severance pay effective 10 December 2003.
3. On 10 December 2003, he was honorably discharged with severance pay due to physical disability.
4. Records show he was a participant in the Sabo versus United States lawsuit.
5. On 30 July 2012, Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Orders 212-0638, dated 30 July 2012, revoked Orders 335-0003, dated 1 December 2003, as a result of the Sabo Settlement Agreement, dated 12 August 2011. Orders 212-0638 also placed the applicant on the Temporary Disability Retired List effective 10 December 2003.
6. The applicant's DD Form 2656 (Data for Payment of Retired Personnel) showing his election to participate in the SBP and his elected coverage is not available for review.
7. The applicant provided email showing his attempts to terminate his SBP election. He also provided a sworn statement from his spouse concurring with termination of SBP coverage.
8. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members serving 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 specific circumstances. This law also provided that every member having a spouse and/or child(ren) who retired/transferred to the Retired List on or after that date is automatically covered under the SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the Retired List.
9. 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.
DISCUSSION AND CONCLUSIONS:
1. As a result of the Sabo Agreement, dated 11 August 2011, the applicant's discharge in 2003 was revoked and he was retroactively placed on the TDRL in 2012 with an effective date of 11 December 2003.
2. Since the applicant's retirement was retroactive, SBP premiums and any interest became due upon his election and were retroactive to his retirement date of 11 December 2003. Further, his 1-year period to terminate his participation expired prior to his placement on the TDRL. His spouse concurs with his decision to terminate SBP as indicated in her notarized statement.
3. As a matter of equity, the applicant's records should be corrected to show he elected not to participate in the SBP, his spouse timely concurred with this election, and officials at DFAS timely processed the request.
BOARD VOTE:
____X___ ____X___ ____X___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ 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 the applicant timely completed a DD Form 2656 electing not to participate in the SBP and that his spouse properly concurred with his decision on the same date
* showing DFAS timely received and processed the applicant's DD Form 2656 declining the SBP with his spouse's concurrence
* reimbursing all premiums already paid by the applicant as a result of this correction
_______ _ X_______ ___
CHAIRPERSON
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.
ABCMR Record of Proceedings (cont) AR20140008237
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20140008237
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2011 | 20110000971
When he received his first Retiree Account Statement (RAS) it showed he was enrolled in the SBP for full spouse coverage and that he had incurred a debt in excess of $3,000 for retroactive SBP premiums. Both the applicant's OMPF and ACTS are void of the DoD PDBR Record of Proceedings or any evidence showing corrective action was taken in the form of providing him: * TDRL orders * a revised DD Form 214 * Permanent disability retirement orders * a DD Form 2656 or any other form of SBP...
ARMY | BCMR | CY2015 | 20150009327
The evidence of record shows the applicant submitted a DD Form 2656 and a DD Form 2656-1 wherein he elected to participate in the SBP for former spouse and children coverage pursuant to a written agreement previously entered into voluntarily as part of divorce proceedings and incorporated in a court order. The divorce proceedings do not compel the applicant to provide SBP coverage for his former spouse. Although the applicant indicated on the forms that he entered into a written agreement...
AF | BCMR | CY2005 | BC-2004-00493
If the correct information had been provided to his former spouse, her SBP selection would have been “none.” In support of his request, applicant provided a letter from his former spouse’s attorney with a chronology of events surrounding the election of former spouse coverage; copies of his separation agreement and divorce decree; a copy of “A Guide to: Military Marriage Dissolution, Separation, Pension Division and DFAS DRO’s”; DD Form 2656-1, Survivor Benefit Plan (SBP) Election Statement...
ARMY | BCMR | CY2011 | 20110008601
BOARD DATE: 8 December 2011 DOCKET NUMBER: AR20110008601 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Therefore, in the interest of fairness and as a matter of equity, his records should be corrected to show that the applicant elected not to participate in the SBP in a timely manner, that his spouse concurred with the election, and that he is entitled to a refund of any premiums deducted from his retired pay. As a result, the Board recommends that all Department of the Army records of...
ARMY | BCMR | CY2011 | 20110011348
The evidence of record confirms the applicant elected spouse and children SBP coverage at a reduced base amount at the time of his retirement from military service. SBP premiums are deducted from a members retired pay. Therefore, based on the lack of SBP counseling received at the time of retirement, the applicant's record should be corrected in the interest of equity and justice, to show he declined participation, with his wife's concurrence, in the SBP which would also result in the...
ARMY | BCMR | CY2012 | 20120009842
A letter from the DFAS Retired and Annuitant Pay Department, dated 27 January 2012, shows the applicant was advised in accordance with the Physical Disability Board of Review's recommendation his military record had been corrected to reflect that he was placed on the Permanent Disability Retired List effective 9 October 2009. The law allows a participating member to elect to discontinue participation by submitting a DD Form 2656-2 during the period that is more than 2 years but less than 3...
ARMY | BCMR | CY2012 | 20120001944
The applicant states he retired in 2008 and was required to provide SBP coverage for his former spouse by divorce decree. On 23 January 2009, the applicant was notified that the request to terminate SBP coverage was denied. Based on the fact that the former spouse requested not to participate shortly after becoming entitled and the court amended the divorce decree, it is reasonable to presume that had the former spouse been properly informed of the requirements and consequences of the...
ARMY | BCMR | CY2006 | 20060001034C070205
Jonathan Rost | |Member | The Board considered the following evidence: Exhibit A - Application for correction of military records. It appears the applicant contends he was not provided a new DD Form 2656 by which he could have implemented his spouse’s SBP desires. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he completed a DD Form 2656 on 31 August 2005 and elected not to participate in the SBP, with spouse...
ARMY | BCMR | CY2009 | 20090020627
His spouse did not sign the DD Form 2656 under Section XII (SBP Spouse Concurrence) to indicate she concurred with the SBP decision made by her spouse. The applicant's RAS, dated 2 November 2009, shows that he is paying SBP coverage, spouse only, in the amount of $265.92. An election to decline to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse (or child only coverage, if applicable) coverage.
ARMY | BCMR | CY2014 | 20140012453
This requires establishment of his current spouse as the only eligible SBP beneficiary of record. Public Law 99-661, dated 18 November 1984, permitted divorce courts to order SBP coverage (without the member's agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election. The evidence of record shows prior to his retirement, he completed an SBP election form wherein he elected SBP former spouse...