IN THE CASE OF: BOARD DATE: 23 September 2008 DOCKET NUMBER: AR20080005875 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 that the date his wife signed the DD Form 2656 (Data for Payment of Retired Personnel), be corrected to allow for a declination of Survivor Benefit Plan (SBP) and the monies withheld be refunded. 2. The applicant states that it has always been his and his wife's intention to decline SBP coverage. Due to an administrative error and miscommunication between himself, his wife, and the retirement services officer as to the dates the declaration was signed, their intent to decline coverage was nullified and SBP withholdings commenced. 3. The applicant provides a copy of a DD Form 2656 in support of his application. CONSIDERATION OF EVIDENCE: 1. The applicant, a career Soldier, entered active duty on 4 November 1987 and served continuously until his voluntary retirement on 30 November 2007. During his career he attained the rank of master sergeant (E-8). 2. The applicant's iPERMS (Interactive Personnel Electronic Records Management System) file contains the applicant's request for voluntary retirement, dated 8 August 2007, but does not contain a copy of the DD Form 2656. 3. Section IX (Survivor Benefit Plan Election), item 26g is marked "I elect not to participate in SBP." 4. The DD Form 2656, provided by the applicant, shows that on 14 November 2007, his spouse completed and signed Section XI (SBP Spouse Concurrence), indicating she concurred with the applicant's election with regard to declining receipt of SBP. The Fort Bragg Transition Center Retirement Services Officer witnessed and signed the spouse’s concurrence on the same respective date. 5. On 15 November 2007, the applicant completed and signed Section XII (Certification), certifying that the information provided was correct. His signature was also witnessed by the same transition center retirement services officer on the same date. 6. The DD Form 2656, section XI specifically states, “…The date of the spouse’s signature in item 30.b MUST NOT be before the date of the member’s signature in item 32.b, below.” 7. The applicant was contacted via e-mail by the staff of the ABCMR on two occasions in a attempt to obtain a notarized statement signed by himself and his spouse attesting to their election not to participate in the SBP. No response was received for either e-mail. 8. Public Law 92-425, enacted 21 September 1972, established the Survivor Benefit Plan (SBP). The SBP provides that military members on active duty can elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. Elections are made by category, and 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. All elections to participate in the SBP must be made prior to the effective date of retirement. 9. Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation. Retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from 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. The applicant's spouse signed and dated the concurrence block the day before the applicant signed the DD Form 2656. This is in direct contradiction of the regulations and the specific statement as noted in Section XI of the DD Form 2656. This in effect invalidated the applicant’s intended election. 2. While there is an administrative error in the preparation of the election form, the error appears to be equally that of the applicant, his spouse, and the retirement services officer. The error on the part of the retirement services officer does not relieve the applicant of proper completion and compliance with the regulations. 3. The applicant failed to respond to the staff’s request for a notarized statement signed by himself and his spouse attesting to the fact that his spouse agreed to not participate in the SBP. Without verification the applicant's spouse agreed to the non-participation election, it is not appropriate to grant the requested relief at this time. 4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ___X____ ___X____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. __________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) AR20080005875 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080005875 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1