IN THE CASE OF:
BOARD DATE: 14 April 2015
DOCKET NUMBER: AR20140011431
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 correction of his record to show he declined Survivor Benefit Plan (SBP) coverage.
2. The applicant states:
a. He and his spouse missed the deadline to decline SBP coverage by 10 days and wish not to utilize this benefit.
b. Both he and his spouse respectfully request reimbursement of premiums paid for SBP coverage as they plan to invest this money for their future.
c. As soon as he went on terminal leave, he accepted a job that took him away from home for three weeks at a time and that during his one week off, his wife's work schedule made it difficult for them to return to the base to settle his matters for which he apologizes.
d. He was aware that the paperwork could have been sent home but he and his spouse kept thinking they would be able to schedule a visit to the base and that again it is his fault.
e. He submitted his SBP election indicating their desire to decline this coverage 10 days after the deadline and hopes that his more than 22 years of service will be considered in his case.
3. The applicant provides a self-authored statement and a DD Form 2656 (Data for Payment of Retired Personnel).
CONSIDERATION OF EVIDENCE:
1. The applicant's record shows that on 31 May 2014, he retired from active duty in the rank of sergeant first class (SFC) after completing a total of 20 years, 10 months, and 20 days of creditable active duty service and 1 year, 5 months, and 8 days of inactive service. His official military personnel file provides no documents to show if he received or did not receive any SBP counseling.
2. He provides a DA Form 2656, which shows he declined to participate in the SBP on 10 June 2014. It also shows his spouse concurred with his decision and her concurrence was notarized on 10 June 2014.
3. On 3 February 2015, a staff member of the ABCMR contacted a Defense Finance and Accounting Service (DFAS) official to ascertain if the applicant was currently enrolled in the SBP, what election was made, and/or if the applicants' SBP participation was started by a default option.
4. On 3 February 2015, the DFAS official (Indianapolis office) provided that based on the records from DFAS, Cleveland, the applicant elected SBP coverage for spouse; however there were no documents available evidencing this information. On 24 March 2014, a DFAS official (Cleveland office) provided the applicant's pay record including a DD Form 2656, dated 10 June 2014, which shows he declined participation in the SBP. However, this election was invalid because it was made 10 days after his retirement and SBP coverage was initiated by default for spouse and children coverage.
5. 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.
6. Section 1448, Title 10, U. S. Code provides that if a person makes an election not to participate in the SBP, the persons spouse shall be notified of that election. Spousal concurrence is needed only when a married person elects to provide an annuity for his spouse at less than the maximum level or to provide an annuity for a dependent child but not for his/her spouse. An election received for less than the maximum level without spousal concurrence will automatically default in activation of SBP coverage at the maximum level.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends his participation in the SBP should be terminated and all resulting premiums deducted from his retired pay for this coverage should be reimbursed because he initially missed the deadline to decline this coverage by 10 days. There is sufficient evidence to support this claim.
2. The evidence of record confirms the applicant declined participation in the SBP with his spouse's notarized concurrence 10 days after his 31 May 2014 retirement on 10 June 2014 as evidenced by his DFAS record and the evidence he provides. Based on this 10-day delay, his election to decline SBP coverage was determined invalid and SBP coverage with spouse and children was initiated.
3. The applicant indicates his difficulty and delay in submitting his election was caused by both his and his spouse's conflicting work schedules. Although there is no evidence of Government error, it appears the applicant and his spouse intended to decline SBP but the chaos associated with transitioning from the military prevented their timely action in the matter. Since they were only 10 days late, the applicant's record should be corrected in the interest of equity, to show he declined participation, with his wife's concurrence, in the SBP on 31 May 2014, which would also result in the reimbursement of any premiums currently owed for this benefit.
BOARD VOTE:
____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:
a. the applicant declined participation in the SBP with his wife's concurrence, effective 31 May 2014; and
b. as a result of this correction, reimbursing him all SBP premiums he has paid.
____________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) AR20140011431
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ABCMR Record of Proceedings (cont) AR20140011431
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