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 spouses 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 spouses signature in item 30.b MUST NOT be before the date of the members 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 spouses 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 applicants 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 staffs 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
ARMY | BCMR | CY2008 | 20080008254
The applicant states that he and his spouse elected not to participate in the SBP; however, when they completed the DD Form 2656 (Date for Payment of Retired Personnel), she erroneously entered the date "20061214" instead of "20071214," resulting in a "default" spouse coverage based on the full amount. The applicants DD Form 2656, dated 14 December 2007, shows he elected Not to participate in the SBP" and placed an "x" in Item 26g (I Elect Not to Participate in the SBP). As a result, the...
ARMY | BCMR | CY2010 | 20100007522
The applicant contends the DD Form 2656 that he completed on 27 October 2009 where he declined SBP spouse coverage should be honored and the SBP premiums refunded because both he and his spouse were present when he signed the document in the presence of an Army SBP counselor and notary public, respectively. The evidence of record confirms that on 27 October 2009, in his application for retired pay, the applicant declined to participate in SBP. The evidence shows that, for some period of...
ARMY | BCMR | CY2008 | 20080011716
The applicant requests, in effect, correction of his records to show he elected not to participate in the Survivor Benefit Plan (SBP) with his spouse's concurrence. By doing so, he also acknowledged he had been counseled that he can terminate SBP participation, with his spouse's written concurrence, within one year after the second anniversary of commencement of retired pay. Completion of Section XI (SBP Spouse Concurrence) of DD Form 2656 is required when a service member is married and...
ARMY | BCMR | CY2013 | 20130018650
The applicant requests his DD Form 2656 (Data for Payment of Retired Personnel) be corrected to show his spouse concurred with his election not to participate in the Survivor Benefit Plan (SBP) on 12 December 2012. Since his spouse concurred with his election not to participate in the SBP, it would be equitable to correct his record to show his spouse concurred with the SBP election shown on his DD Form 2656 on 12 December 2012. As a result, the Board recommends that all Department of the...
ARMY | BCMR | CY2008 | 20080019169
The applicant requests, in effect, that her records be corrected to show she elected, with her spouse's concurrence, not to participate in the Survivor Benefit Plan (SBP) and reimbursement of SBP premiums deducted from her retired pay. Evidence of record shows that the applicant declined SBP coverage on 12 May 2008. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing that the applicant's spouse concurred with her...
ARMY | BCMR | CY2008 | 20080018648
On 6 February 2008, the applicant's spouse concurred with his SBP election not to participate by providing a signed, notarized Spouse SBP Election Concurrence Statement, dated 6 February 2008. Evidence of record shows that the applicant elected not to participate in spousal SBP coverage on 25 January 2008 and his spouse concurred with his SBP election on 6 February 2008. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected...
ARMY | BCMR | CY2010 | 20100018920
Section XII (SBP Spouse Concurrence) of the DD Form 2656 instructs the applicant that "SBP spouse concurrence is required when a member is married and elects child(ren) only coverage, does not elect full spouse coverage, or declines coverage. The evidence of record shows that prior to his retirement on 31 May 2010, the applicant and his wife elected to decline participation in the SBP with a notarized DD Form 2656, dated 30 March 2010. As a result, the Board recommends that all Department...
ARMY | BCMR | CY2012 | 20120000267
State of Delaware, Marriage License and Certificate of Marriage, that shows the applicant and Dannette Michelle B---- were married on 20 October 2001; b. DD Form 2656-2 (SBP Termination Request) that shows: * the applicant requested to discontinue participation in the SBP * his spouse acknowledged her understanding of the disadvantages of the decision and provided her concurrence * the applicant, his spouse, and a witness signed the form on 29 December 2011 c. notarized statement by Dannette...
ARMY | BCMR | CY2008 | 20080012463
On 5 May 2008, the RSO sent the applicants spouse a letter informing her that the applicant had elected not to participate in the SBP. The letter stated "Your spouse, CSM R________ G. A______ has requested retirement from the military service to be effective July 1, 2008. Evidence of record shows that the applicant retired on 1 July 2008.
ARMY | BCMR | CY2008 | 20080001840
Director Analyst The following members, a quorum, were present: Chairperson Member Member The Board considered the following evidence: Exhibit A - Application for correction of military records. If he and his spouse did not want the SBP, he had more than 3 months in which he could have completed a new DD Form 2656 and obtained his spouses concurrence to his declination on the new DD Form 2656. The applicant does not explain why he completed the DD Form 2656, dated 9 August 2007, to...