IN THE CASE OF:	  

	BOARD DATE:	  29 July 2008

	DOCKET NUMBER:  AR20080006454 


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 Item 27 (Level of Coverage) of his Survivor Benefit Plan (SBP), on his DD Form 2656 (Data for Payment of Retired Personnel), to show “Coverage with a Reduced Base Amount of $635.00” instead of “Coverage Based on the Threshold Amount in Effect on the Date of Retirement.” 

2.  The applicant states that he and his spouse elected coverage with a reduced base amount of $635.00 in Item 27 of his DD Form 2656, which was the minimum threshold amount in effect at the time he and his spouse signed the form on 24 August 2007.  However, at the time of retirement on 1 March 2008, this amount becomes $675.00. 

3.  The applicant provides a copy of his DD Form 2656, dated 24 August 2007, in support of his application.

4.  On 27 June 2008, the applicant submitted an undated/unsigned or notarized draft by his spouse, concurring with his election of the reduced coverage.

5.  On 30 June 2008, the applicant submitted a notarized statement by his spouse, dated 27 June 2008, concurring with his election of the reduced coverage.




CONSIDERATION OF EVIDENCE:

1.  The applicant is a retired sergeant first class (SFC) who entered military service on 10 February 1984, held military occupational specialty (MOS) 18F (Special Forces Assistant Operations/Intelligence Sergeant), and was placed on the retired list on 1 March 2008 after completing over 24 years of honorable military service.  

2.  The applicant’s DD Form 2656, dated 24 August 2007, shows he elected “Spouse Only” SBP coverage and placed an "x" in Item 26 (Beneficiary Category).  However, he made two entries in Item 27 as follows:

	a.  he did not place an “x” in Item 27c; but placed the entry “$635.00” next to the sentence that states “I elect coverage with a reduced base amount of“; and 

	b.  placed an “x” in Item 27d “I elect coverage based on the threshold amount in effect on the date of retirement.”

3.  As a result of the two conflicting entries on the DD Form 2656, according to the Defense Finance and Accounting Service (DFAS)-Cleveland, Ohio, the applicant's coverage defaulted to a "Coverage Based on Full Gross Pay" and premiums are collected from the applicant's pay based on the full amount. 

4.  The DD Form 2656 is used to collect information needed to establish a retired/retainer pay account.   Section IX of this form is used to make an election under the SBP.  Item 27 is completed as follows:  

      a.  Item 27b:  Mark if you desire the coverage to be based on a reduced portion of your retired/retainer pay. This reduced amount may not be less than $300.00.  If your gross retired/retainer pay is less than $300.00, the full gross pay is automatically used as the base amount.  Enter the desired amount in the space provided to the right of this item. Proceed to Section XII, if married.

      b.  Item 27c:  Used by a REDUX member who wants coverage based on actual retired pay received under REDUX.  If this option is selected, proceed to
Section XII, if married.

      c.  Item 27d:  Mark if you desire the higher threshold amount in effect on the date of your retirement.

5.  On 30 June 2008, the applicant submitted a notarized statement, signed by his spouse, concurring with his election to the reduced coverage.

6.  Section XII of the DD Form 2656 states that Title 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, a member with an eligible spouse upon retirement, who elects any combination other than Items 26a or 26b and 27a, must obtain the spouse's concurrence in Section XII.  A Notary Public must be the witness.
In addition, the witness cannot be named beneficiary in Section V, VIII, or IX.  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 spouse and child(ren) if appropriate.

7.  Public Law 92-425, the SBP, enacted 21 September 1972, 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.  However, surviving children are only entitled to SBP payments until reaching age 22 in certain cases. Changes in SBP options are not authorized except in specific instances, or authorized by law.

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 provided less than maximum spouse coverage. 

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 spouse’s concurrence is required.  No premiums will be refunded to those who opt to disenroll. 

10.  Department of Defense Instruction 1332.42, Survivor Annuity Program Administration, requires that spousal consent be notarized in the case of a member electing less than the maximum SBP coverage or declines coverage.  The signature of the spouse must be notarized.  The requirement to have the spouse's signature notarized is not to suggest that the spouse has received additional counseling regarding the option being selected; it simply provides clarification that the spouse signed the form.

DISCUSSION AND CONCLUSIONS:

1.  It is clear that when the applicant completed the DD Form 2656, he made two entries in Item 27, the level of coverage.  As a result of this, his SBP coverage defaulted to the maximum coverage. 

2.  Any change in the current level of coverage, resulting from what appears to be an administrative error in this case, or otherwise, requires written and notarized concurrence by the spouse.  His spouse submitted a notarized statement concurring with his election of the reduced coverage.  

3.  In view of the foregoing evidence, and in the interest of equity, it is now appropriate to grant the applicant relief by correcting his SBP enrollment to show he elected the reduced amount and reimbursing him the difference in premiums paid as of the date of his retirement, if applicable. 

BOARD VOTE:

__xxx___  __xxx___  __xxx___  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 the applicant elected coverage with a reduced base amount of $635.00 prior to his retirement with proper spousal concurrence; and

	b.  adjusting the applicant's premiums and refunding any SBP premiums as a result of this correction.



							XXX
       _    _______   ___
       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)                                         AR20080006454



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ABCMR Record of Proceedings (cont)                                         AR20080006454



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