RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 January 2008
	DOCKET NUMBER:  AR20070011600 


	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. Mohammed R. Elhaj

Analyst


The following members, a quorum, were present:


Ms. Shirley L. Powell

Chairperson

Mr. Paul M. Smith

Member

Mr. Larry C. Bergquist

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 correction of his records to show he elected not to participate in the Survivor Benefit Plan (SBP) upon retirement for physical disability.

2.  The applicant states that prior to his temporary disability retirement, he completed the DD Form 2656 (Data for Payment of Retired Personnel) electing not to participate in the SBP.  However, the original form was accidentally returned to him; also the person who witnessed the spouse’s concurrence with the applicant’s SBP election did not sign the form.  As a result, the form was not forwarded to Defense Finance and Accounting Service (DFAS) and the applicant’s SBP coverage defaulted to spouse coverage.  He further states that he called DFAS and other agencies to correct the SBP election and stop premium deductions from his retired pay, but the collection has not stopped. 

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  DD Form 2656, dated 15 December 2005.

	b.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 29 December 2005.

	c.  Self-authored letter, dated 18 June 2007.

	d.  Notarized spouse’s statement, dated 20 June 2007, concurring with the applicant’s election not to participate in the SBP.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a retired Regular Army staff sergeant (SSG)/E-6, who entered military service in the Regular Army on 8 March 1995.  He was placed on the Temporary Disability Retirement List (TDRL) effective 29 December 2005.  The DD Form 214 he was issued at the time of his medical retirement shows he completed 10 years, 9 months, and 22 days of creditable military service.

2.  On 15 December 2005, the applicant and his spouse were counseled by an SBP Counselor at Fort Sam Houston, Texas, regarding SBP enrollment.  The applicant completed the DD Form 2656 and elected not to participate in the SBP. His spouse concurred with his election and placed her signature in Item 30a (Signature) and the date “15 December 2005” in Item 30b (Date).  The SBP Counselor (Witness) placed her name in Item 31a and full address in Items 31d through 31g.  However, the witness did not place her signature in Item 30b or the date in Item 30c.  The applicant signed in Item 32a and placed the date “15 December 2005” and the SBP Counselor (witness) placed her signature in Item 33b.

3.  On the date of the applicant's retired/retainer pay account was established, one of two situations occurred: either DFAS received no SBP election, or DFAS received an invalid SBP election.  Therefore, DFAS established the applicant’s retired pay account with SBP coverage at the maximum rate, based on Spouse-only coverage, the default SBP election.

4.  In his self-authored letter, the applicant states that the witness simply forgot to sign the form and mistakenly gave the original back to him instead of sending it to DFAS.  He further describes his efforts to correct this error and stop the collection of SBP premiums in the past two years.  He concludes that he elected not to participate in the SBP and believes his family and he should not suffer financially because of someone else’s mistake.  He requests a refund of $81.71 a month for the last 18 months (as of the date of his letter). 

5.  The applicant submitted a notarized statement, signed by his spouse, concurring with the applicant’s election not to participate in the SBP.

6.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP 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. An election, once made, was irrevocable except in certain circumstances.  This Law also provides that every member having a spouse and/or child(ren), who retired/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list.

7.  10 U.S. Code, Section 1448 requires that an otherwise eligible spouse concur if the member declines to elect SBP coverage, elects less than maximum coverage, or elects child only coverage.  Therefore, if any of the following items or combination of items are marked, the spouse and a witness must complete Items 30 and 31; Items 26a and either 27b or 27c; 26b and either 27b or 27c; 26c or 26g.  A witness cannot be named beneficiary in Section V, VIII, or IX.  The SBP Counselor or a Notary Public must be the witness.  Spouse must present photo bearing identification to the witness prior to signature.  Spouse's concurrence must be obtained and dated on or after the date of the member's election, but before the retirement/ transfer date.  If concurrence is not obtained when required, maximum coverage will be established for the member’s spouse and child(ren) if appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show that he elected not to participate in the SBP.

2.  Evidence of record shows that the applicant, in good faith and in the presence of his spouse and an SBP counselor, elected not to participate in the SBP.  The witness (counselor) signed the form on the same date certifying the applicant’s election in one place but forgot to certify the spouse's concurrence.  

3.  It appears that DFAS either did not receive the applicant’s SBP election or received the invalid form.  Therefore, DFAS established the applicant’s retired pay account with SBP coverage at the maximum rate, based on Spouse-only coverage.

4.  This administrative oversight has clearly caused financial hardship to the applicant and his family.  He attempted in good faith to correct this error very shortly after receiving his first retirement pay; he contacted the responsible agency; he contacted DFAS; and he sent a letter to the address he was given.  Regrettably, his efforts ended in frustration.  In view of the foregoing, it would be equitable to correct the applicant’s records to show that when he was placed on the TDRL, with the required spousal concurrence, he elected not to participate in the SBP. 

BOARD VOTE:

_ LCB___  __PMS __  _SLP___ 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.  showing that, upon retirement, he elected not to participate in the SBP with the required spousal concurrence; and

	b.  reimbursing the applicant all SBP premiums collected to date, as a result of this correction.





____ Shirley L. Powell __
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.