RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 May 2007
      DOCKET NUMBER:  AR20060015311


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Gerard W. Schwartz            |     |Acting Director      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William F. Crain              |     |Chairperson          |
|     |Mr. Donald L. Lewy                |     |Member               |
|     |Mr. Roland S. Venable             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his records be corrected to show he elected
to participate in the Survivor Benefit Plan (SBP).

2.  The applicant states that when he first submitted his retirement
paperwork, he and his wife completed a form to decline to participate in
the SBP.  Later, but before his retirement date, his benefits
representative called and said they could not find the form.  The benefits
representative told him that therefore they must include the SBP.  He and
his wife said OK and left it at that.  For the past two years SBP premiums
have been withheld, and he and his wife have made their plans accordingly.

3.  The applicant states that now, after two years, the form has been found
and they have been refunded the premiums.  Now they are told his wife is
not covered by the SBP.  Since the law concerning Social Security offset
has been changed, he would like to leave the SBP as it was for the past two
years.  He wants to continue as per his agreement with the benefits
representative two years earlier.

4.  The applicant provides a 2 October 2006 letter from the Defense Finance
and Accounting Service and a Retiree Account/Annuity Statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 30 November 1944.  After having had prior
commissioned officer service in the U. S. Air Force Reserve and the Army
National Guard, he transferred to the U. S. Army Reserve around June 1988.

2.  On 13 December 2002, the applicant completed a DD Form 2656 (Data for
Payment of Retired Personnel).  On this form, he checked that he elected
not to participate in the SBP.  His spouse signed the form concurring with
his decision.  This form was apparently lost for a time.

3.  The applicant turned age 60 on 30 November 2004.

4.  On 14 December 2004, the applicant completed another DD Form 2656.  On
this form, he checked that he elected to participate in the SBP for spouse
only coverage, full base amount.

5.  By letter dated 2 October 2006, DFAS informed the applicant that it was
refunding to him SBP premiums paid from 1 December 2004 to 31 August 2006
based upon his DD Form 2656 dated 12 December 2002.  The letter noted that
his DD Form 2656 dated 14 December 2004 was invalid as it was signed after
his retirement date.

6.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The
SBP provided that military members could elect to have their retired pay
reduced to provide for an annuity after death to surviving dependents.  The
election must be made before the effective date of retirement or else
coverage defaults to automatic spouse coverage.

7.  Public Law 108-375, enacted 28 October 2004, enacted a phased
elimination of the two-tiered annuity computation for surviving spouses
under the SBP.  By 2008, the reduction in SBP payments to offset Social
Security payments commencing at age 62 will be eliminated.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, with his spouse’s concurrence, originally declined to
participate in the SBP and in December 2002 completed a DD Form 2656
indicating their desire to decline.  This form was lost or misplaced for
almost four years.

2.  Because there was no evidence of the applicant’s declination to
participate in the SBP when he turned age 60 on 30 November 2004, he was
automatically enrolled in the SBP for spouse coverage.  The applicant
contends that when the benefits representative told him, in effect, that he
must be enrolled in the SBP he and his wife said OK and left it at that.
The applicant’s contention is plausible, since he made no effort to have
his original election reinstated.

3.  The applicant contends that he and his spouse thereupon made their
plans accordingly, and for the past two years SBP premiums were withheld
from his retired pay.  Now, the original declination election has been
located and DFAS has changed his SBP election to show he declined coverage.


4.  The applicant’s request to continue participation in the SBP for spouse
coverage, as the government had selected for him effective the date of his
retirement, is reasonable.  The government made the error, but for two
years he accepted the result of the government’s error as advantageous to
himself and his family.  It would be equitable to correct his records to
show he elected to participate in the SBP prior to his retirement.

BOARD VOTE:

__wfc___  __dll___  __rsv___  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
correcting his DD Form 2656 dated 13 December 2002 to show he elected to
participate in the SBP for spouse coverage, full base amount.




                                  __William F. Crain____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060015311                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070531                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |137.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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