IN THE CASE OF:	

		BOARD DATE:	  25 September 2014

		DOCKET NUMBER:  AR20140001471 


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 records to show he declined participation in the Survivor Benefit Plan (SBP).

2.  He states:

* An SBP representative at Fort Polk, LA lost paperwork from his file
* He has been trying to correct this error since August 2013
* He has contacted the Defense Finance and Accounting Service (DFAS) several times and was told his paperwork was being processed
* In December 2013, DFAS informed him that they didn't receive all of his paperwork
* He was emailed this form to correct his pay since the SBP representative didn't have all of his paperwork in his file

3.  He provides a Spouse SBP Election Concurrence Statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 1 July 1993.  He was married on 25 May 1995.  He continued to serve on active duty through a series of reenlistments.  

2.  In a notarized statement, dated 6 May 2013, the applicant's spouse concurred with his decision to decline SBP.

3.  On 31 July 2013, he retired after completing 20 years of active service.  

4.  He completed a DD Form 2656 (Data for Payment of Retired Personnel) and signed this form on 30 August 2013.  He placed an "X" in the first block of item 26g indicating he did not elect to participate in the SBP.  He also placed an "X" in the first block of item 26g indicating he had eligible dependents under the plan.  This form indicates his spouse and one dependent child.  

5.  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 the applicant.

6.  His Retiree Account Statement with an effective date of 28 February 2014 shows SBP spouse only premiums have been deducted from his retired pay in the amount of $185.87.  

7.  Public Law 92-425, the SBP, enacted on 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Elections are made by category, not by name.  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, if applicable) coverage. 

8.  Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse's written concurrence for a retiring member’s election that provides less than the maximum spouse coverage.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully reviewed.  There is sufficient evidence on which to grant the relief requested.

2.  His spouse provided a notarized statement, dated 6 May 2013, that appears to have been sent to her from an official Army officer.  This notarized statement is accepted as sufficient evidence to support her concurrence with the applicant's decision to decline enrollment in the SBP.

3.  The applicant retired on 31 July 2013.  

4.  After he retired, on 30 August 2013, the applicant completed a DD Form 2656 and elected not to participate in the SBP.  His spouse did not sign the DD Form 2656 indicating she concurred with his decision to decline participation in SBP.  As a result, he was automatically enrolled in SBP.  
5.  It appears it was always the applicant's and his spouse's intent to decline participation in the SBP.  The timing of the preparation of the documents corroborates the applicant's statements in relation to the events that occurred.  

6.  Therefore, as a matter of equity and in light of his spouse's verification of her concurrence, it would be appropriate to amend the applicant’s DD Form 2656 to show he declined to participate in the SBP in a timely manner and refund him all premiums paid.

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:

	a.  amending his DD Form 2656 to show he and his spouse timely signed the form declining to participate in the SBP and the form was properly notarized;

	b.  showing DFAS timely received and processed the DD Form 2656 confirming declination of the SBP; and

	c.  refunding him all SBP premiums paid 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)                                         AR20140001471



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ABCMR Record of Proceedings (cont)                                         AR20140001471



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