IN THE CASE OF:	

		BOARD DATE:	  25 November 2008

		DOCKET NUMBER:  AR20080010405 


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 his records be changed to show he changed his election under the Survivor Benefit Plan (SBP) to spouse and child based on full amount effective 1 February 2007 as provided for in the Open Enrollment Period established in Public Law 108-375.

2.  The applicant states he submitted a change to his election under SBP during the timeframe established for the Open Season.  He states he frequently checked on the status of his election and that the Defense Finance and Accounting Service (DFAS) arbitrarily chose not to implement his change in election.  He further states he has never been formally notified of DFAS's decision not to process his change of election.

3.  The applicant provides, in support of his application, a chronology of his attempts to change his SBP election, a returned receipt from DFAS, a letter from DFAS, and a facsimile (FAX) cover sheet dated 5 December 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel record shows he was commissioned a second lieutenant in the Regular Army on 7 June 1972.  He continued to serve on active duty until his release from active duty on 30 June 1998 and his placement on the Retired List effective 1 July 1998.  

2.  The applicant's SBP election form completed at the time of his retirement is not available for review.  However, statements from the applicant and DFAS indicate that he had elected spouse and child coverage at a reduced amount.

3.  The applicant submitted a chronology of the events that took place in his attempt to change his SBP election during the SBP Open Season established for 
1 October 2005 to 30 September 2006.  His desire was to increase the SBP coverage from reduced amount to full amount.

4.  On 28 September 2006, DFAS signed for receipt of the applicant's 
DD Form 2656-9 (Survivor Benefit Plan [SBP] and Reserve Component Survivor Benefit Plan [RCSBP] Open Enrollment Election) that indicated a change of his election to spouse only coverage at the full amount.
5.  On 24 November 2006, the applicant received a letter, dated 21 November 2006, from DFAS indicating that he could not change the beneficiary on his SBP during the Open Season.  In this letter, DFAS advised the applicant he had 30 days from the date of the letter to submit a corrected DD Form 2656-9.  DFAS further advised the applicant that if a corrected DD Form 2656-9 was not received by DFAS within the allotted time his Open Enrollment Election would be cancelled.

6.  On 5 December 2006, the applicant FAXed a corrected DD Form 2656-9 to DFAS on which he elected spouse and child coverage at the full amount.  On the cover sheet for this FAX the applicant noted he was submitting the corrected 
DD Form 2656-9 as directed and requested a confirmation that it was received.

7.  The applicant further documents his telephone attempts made to DFAS on 
27 February, 2 May, 30 May, and 28 September 2007 to obtain the status of his change of election under the SBP.  In his 28 September 2007 call to DFAS, the applicant was advised that in August 2007 a determination was made not to process his corrected DD Form 2656-9.  He was further advised that his only recourse was to appeal to the Army Board for Correction of Military Records and DFAS provided him an application.

8.  A telephone conversation between the staff of the Board and DFAS provided the following information concerning the applicant's SBP election as entered in the DFAS data base.

9.  On 1 July 1998, the applicant became entitled to retired pay and his SBP election was shown as spouse and child coverage at a reduced amount.

10.  On 29 September 2006, DFAS received the applicant's DD Form 2656-9 on which he had elected spouse only coverage based on the full amount of his retired pay.

11.  On 21 November 2006, DFAS notified the applicant that he could not change beneficiaries during the Open Enrollment Period.  He was further advised he had 
30 days from the date of the letter to submit a corrected DD Form 2656-9 or his open enrollment would be cancelled.

12.  On 5 December 2006, DFAS received the applicant's corrected 
DD Form 2656-9 electing spouse and child coverage based on the full amount of his retirement pay.

13.  On 15 August 2007, the DFAS data base shows the applicant's records were closed.  There is no indication as to why the corrected DD Form 2656-9 was not processed.

14.  A copy of the corrected DD Form 2656-9 was not available for review.

15.  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.  Elections are made by category, not by name.

16.  Public Law 108-375, enacted 28 October 2004, eliminated the post age 62 spouse or former spouse 35 percent SBP annuity by incrementally increasing the SBP annuity to 55 percent.  This law established an Open Enrollment Period from 1 October 2005 to 30 September 2006 for members not participating to the fullest possible extent.  The effective dates for elections made during this open enrollment period 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 contends that his SBP election made during the Open Enrollment Period for spouse and child coverage based on the full amount of his retirement pay should be accepted because he complied with all instructions given to him.

2.  The applicant initially attempted to change his SBP election, signed for by DFAS on 28 September 2006, to provide for an annuity based on the full amount of his retirement pay within the timeframe set forth in the Open Enrollment Period.  
3.  When DFAS notified the applicant, in their letter dated 21 November 2006, that his initial request was invalid and they advised him he had 30 days to submit a corrected DD Form 2656-9.  The applicant's statement, copy of the FAX cover sheet, and the records on file at DFAS show the applicant's corrected DD Form 2656-9 was received at DFAS on 5 December 2006, well within the 30 day deadline.

4.  The records at DFAS do not indicate why DFAS failed to comply with their own letter and process the applicant's corrected DD Form 2656-9.  It is clear the applicant's intent is to provide his spouse and child with an SBP annuity based on the full amount of his retirement pay.  Therefore, it is clear that there was an error in failing to process the applicant's request that has resulted in an injustice by denying the applicant the increased SBP coverage.  

5.  DFAS did not reject the applicant's election for SBP based on full amount that he submitted during the Open Season.  DFAS merely allowed the applicant 30 days to submit a corrected copy concerning the beneficiaries. 

6.  In view of the above, it is appropriate to change the applicant's SBP election to spouse and child coverage based on the full amount of his retirement pay.  Based on the date of receipt, 28 September 2006, of the original DD Form 2656-9 submitted during the Open Season, the effective date for this election would be 1 October 2006.

7.  Although relief is appropriate, the ABCMR recognizes its fiduciary duty in protecting the viability of the SBP.  In order to grant relief, the ABCMR recognizes that any increased SBP premiums due since the effective date of the applicant's increase in coverage must be paid into the SBP.  

BOARD VOTE:

___X____  ___X____  ___X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant changed his SBP election to spouse and child 
coverage based on the full amount of his retirement pay with an effective date of 
1 October 2006.

2.  The applicant is responsible for payment of any increased SBP premiums due and payable since the effective date of his change in election.

3.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to an effective date 
of 1 February 2007.  




      _______ _ 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)                                         AR20080010405





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ABCMR Record of Proceedings (cont)                                         AR20080010405



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