RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  10 July 2007
	DOCKET NUMBER:  AR20070000616 


	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.  


Ms. Catherine C. Mitrano

Director

Mr. John J. Wendland, Jr.

Analyst


The following members, a quorum, were present:


Ms. Kathleen A. Newman

Chairperson

Ms. Susan A. Powers

Member

Mr. Edward E. Montgomery

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, in effect, that his Survivor Benefit Plan (SBP) election be corrected by immediately withdrawing his spouse from the SBP program and refunding all of the SBP payments that he has made.

2.  The applicant states, in effect, that before he was scheduled to retire from active duty, he sent a DD Form 2656 to the Retirement Services Office (RSO) at Fort Leonard Wood, Missouri.  The applicant also states, in effect, that the RSO did not receive the DD Form 2656 and, as a result, he was enrolled in the SBP.  The applicant further states, in effect, there has been a misunderstanding and administrative error involved in the handling of his SBP and he would like the matter to be resolved.

3.  The applicant provides the front page of a DD Form 2656 (Data for Payment of Retired Personnel); 2 back pages of a DD Form 2656, dated 27 June 2005 and 22 August 2005; a Statement, dated 22 August 2005; 3 DA Forms 3918-R (Facsimile Transmittal Header Sheets), dated 27 September 2006 and
25 October 2006; and 2 Transmission Verification Reports, dated 27 September 2006 and 25 October 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military service records show that he enlisted in the U.S. Army Reserve on 3 November 1982 and entered active duty in the Regular Army (RA) on 12 January 1983.  The applicant served continuously on active duty in the RA, attained the rank of first sergeant/pay grade E-8, and honorably retired from active duty on 31 August 2005 after completing a total of 22 years, 7 months, and 19 days total active service.  The applicant was placed on the Army retired list, effective 1 September 2005.

2.  The applicant's military service records are absent copies of any forms related to the SBP, including a DA Form 2339 (Application for Voluntary Retirement),
DD Form 2656 (Data for Payment of Retired Personnel), or DD Form 2656-8 (Survivor Benefit Plan - Automatic Coverage Fact Sheet).

3.  In support of his application, the applicant provides the following documents.

     a.  The front page of a DD Form 2656 (Data for Payment of Retired Personnel), which shows, in pertinent part, that the applicant was married to Veronica D. G_____ and that the date of their marriage was 18 December 1987. This document also shows that the applicant has 3 children.
     b.  The back page of a DD Form 2656, dated 27 June 2005, which shows in Section IX (Survivor Benefit Plan (SBP) Election), Item 26 (Beneficiary Category), that an “X” was typed in the box indicating, “I Elect Not to Participate in SBP” and that the applicant did have eligible dependents under the plan.  This document also shows that the applicant placed his signature in Section XII (Certification) of the form and that it was witnessed by Beverly D. R___, RSO, Fort Leonard Wood, Missouri.  

     c.  The back page of a DD Form 2656, dated 22 August 2005, which shows in Section IX (Survivor Benefit Plan (SBP) Election), Item 26 (Beneficiary Category), that an “X” was typed in the box indicating, “I Elect Coverage for Spouse Only” and that the applicant did have dependent children.  This document also shows that a handwritten “X” was placed in the box indicating, “I Do Not Have Eligible Dependents Under the Plan.”  Item 27 (Level of Coverage) shows that an “X” was typed in the box indicating, “I Elect Coverage With a Reduced Base Amount of $616.00.”  This document also shows that the words “Please Terminate” were handwritten in Section X (Remarks), Item 29.  Section XI (SBP Spouse Concurrence), Item 30 (Spouse), box a (Signature), is absent a signature.  However, Section XII (Certification), Item 32 (Member), box a (Signature), shows that the applicant’s spouse placed her signature in the area designated for the applicant to sign.  However, the form is not signed by the applicant or a witness.

     d.  A Statement, dated 22 August 2005, which shows, in pertinent part, that the applicant’s spouse checked the entry indicating, “No Survivor Coverage for Spouse or Children” and that she placed her signature on the document.  This document also shows that it was witnessed by two individuals.

     e.  The Facsimile Transmittal Header Sheets and Transmission Verification Reports show that documents were sent by the applicant from the Department of Military Science, Arkansas State University, to the RSO, Fort Leonard Wood, Missouri, on 27 September 2006 and 25 October 2006.

4.  Public Law 92-425, the Survivor Benefit Plan, enacted 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.  Title 10, United States Code, Chapter 73, provides the basic statutory provisions of SBP law.  This document provides that SBP was designed to give income protection not only to the retiree's spouse, but also to their children until they become self-supporting (i.e., until they are no longer dependents).

5.  Section 1448, Title 10, United States Code, provides that if a person makes an election not to participate in the SBP, the person's spouse shall be notified of that election.  Spousal concurrence is needed when a married person declines coverage, elects to provide an annuity for his/her spouse at less than the maximum level, or elects to provide an annuity for a dependent child(ren), but not for his/her spouse.

6.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his SBP election should be corrected by immediately withdrawing his spouse from the SBP program and refunding all of the SBP payments that he has made.

2.  The evidence of record presents conflicting evidence with respect to the applicant’s SBP election.  In this regard, the DD Form 2656, dated 27 June 2005, shows that the applicant declined SBP coverage; however, there is no indication on the form that his spouse concurred with the SBP election he made declining SBP coverage, at that time.  Conversely, the DD Form 2656, dated 22 August 2005, shows that the applicant’s spouse signed a form that indicated the applicant elected SBP coverage for spouse only, at a reduced base amount of $616.00.  While this form contains two handwritten entries that are contrary to these typed SBP elections, it is reasonable to assume that the two handwritten entries were made after the form was signed by the applicant’s spouse.  It is also noteworthy that the document does not contain the applicant’s signature.  On the other hand, the Statement (also dated 22 August 2005) indicates that the applicant’s spouse concurred with her spouse’s SBP election of no survivor coverage for spouse or children.  However, the two forms that are dated
22 August 2005 offer no indication of the sequence in which they were executed, and the DD Form 2656, dated 22 August 2005, was not completed properly.

3.  Unfortunately, the evidence of record in this case does not allow for a clear indication of what SBP coverage the applicant elected, nor can a determination be made with respect to which form the applicant’s spouse executed first and which one she executed second.  In other words, it cannot be definitively determined from the evidence of record if the applicant’s spouse concurs with no SBP coverage for spouse or children or if she concurs with spouse only coverage at a reduced base amount of $616.00.  In view of the foregoing, the applicant provides insufficient evidence in support of his claim.  Therefore, he is not entitled to correction of his records.

4.  The Board notes that the Facsimile Transmittal Header Sheets and Transmission Verification Reports indicate that it took the applicant more than one year from the date he retired from active duty before initiating action to contact the RSO at Fort Leonard Wood, Missouri, for assistance concerning his SBP election.  In this regard, the applicant provides no explanation concerning the reason for this lengthy delay or any additional documentation showing his previous efforts to contact the RSO or, for that matter, the Defense Finance and Accounting Service (DFAS) regarding his SBP election.

5.  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.

6.  The applicant is advised that the SBP statute states that retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from SBP.  (In the case of the applicant, that one-year period begins on 1 September 2007.)  The applicant’s spouse must concur with his termination request and no SBP premiums will be refunded if the applicant does terminate his SBP.  Along with this Record of Proceedings, a copy of DD Form 2656-2 (Survivor Benefit Plan (SBP) Termination Request) is being provided to the applicant.  The applicant may also obtain this form via the Internet at: http://www.dtic.mil/whs/directives/infomgt/forms/formsprogram.htm

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___KAN__  ___SAP_  ___EEM_  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.




___Kathleen A. Newman____
          CHAIRPERSON




INDEX

CASE ID
AR20070000616
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/07/10
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
20050831
DISCHARGE AUTHORITY
AR 635-200, Chapter 12
DISCHARGE REASON
Sufficient Service for Retirement
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
137.0100.0000
2.

3.

4.

5.

6.