IN THE CASE OF:	  

		BOARD DATE:	        13 November 2008

		DOCKET NUMBER:  AR20080011716 


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, in effect, correction of his records to show he elected not to participate in the Survivor Benefit Plan (SBP) with his spouse's concurrence.  The applicant further requests revocation of his enrollment in the SBP and discontinuation of the deduction of monthly payments from his retirement pay.

2.  The applicant states, in effect, that he and his spouse elected not to participate in the SBP.  He further states the RSO [Retirement Services Officer] at Fort Myer, [Virginia] did not advise them to sign Block 30 [Section XI-SBP Spouse Concurrence] on the DD Form 2656 (Data for Payment of Retired Personnel).  The applicant concludes that he did not realize that he had been erroneously enrolled in the SBP until he received his first Retiree Account Statement and noticed the deduction for the SBP from his retirement pay.

3.  The applicant provides copies of a DD Form 2656, a DD Form 214 (Certificate of Release or Discharge from Active Duty), a DFAS-CL 7220/148 (Retiree Account Statement), and a hand written statement from his spouse as additional documentary evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a retired sergeant first class (SFC) who entered military service on 25 February 1988, held various military occupational specialties and was placed on the retired list on 1 June 2008 after completing over 20 years of honorable military service.
2.  The DD Form 2656 is used to collect information needed to establish a retired/retainer pay account.  A copy of the applicant's DD Form 2656 was obtained from the Defense Finance and Accounting Service Center (DFAS) located in Cleveland, Ohio.

3.  On 27 November 2007, in preparation for his retirement, the applicant completed a DD Form 2656.  In Block 26g (Beneficiary Category(ies)), he elected “Not to participate in the SBP" by placing an "x" in Item 26g (I Elect Not to Participate in the SBP).  The applicant authenticated this form by placing his signature in Item 32a (Member Signature) and the date "20071127" in Item 32b (Member Date Signed).  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.  Furthermore, the witness also authenticated this form by placing her signature in Item 33a (Witness Signature) and the date "20071127" in Item 33c (Witness Date Signed).

4.  Completion of Section XI (SBP Spouse Concurrence) of DD Form 2656 is required when a service member is married and elects child(ren) only coverage, does not elect full spouse coverage, or declines coverage.  Section XI of the applicant's DD Form 2656 is blank and shows that the applicant's spouse did not concur with the SBP election that the applicant made at the time the form was completed and submitted for processing.

5.  The applicant provides a copy of his Retiree Account Statement, dated 3 July 2008, which was prepared by DFAS Cleveland.  The statement shows a deduction for full, spouse only coverage under the SBP.

6.  The applicant provides a handwritten statement signed by his spouse and dated 11 July 2008 indicating that she concurs with his election not to participate in the SBP.  She also acknowledges that she received and understood all the options that were available and the effects of those options.  She concluded that she understands that retired pay stops on the day the retiree dies.  This written statement has not been witnessed or notarized by a third party.

7.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement, otherwise coverage automatically defaults to spouse or child coverage, as/if applicable, and this retirement action may have an effect on the applicant’s SBP status/coverage.  The applicant should contact his nearest RSO for information immediately.  A listing of RSOs is available on the Internet at website http://www/armyg1.army.mil/rso/rso.asp.

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 the 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.  The applicant's contentions that his records should be corrected to show he elected not to participate in the Survivor Benefit Plan (SBP) with his spouse's concurrence, his enrollment in the SBP should be revoked, and the deduction of monthly payments from his retirement pay should be discontinued were carefully considered and determined to be without merit.

2.  It is clear that the applicant elected not to participate in the SBP.  However, when he completed the DD Form 2656, he failed to obtain written concurrence from his spouse.  As a result of not having written spousal concurrence with his election to not participate in the SBP, the applicant's coverage defaulted to a "Coverage Based on Full Gross Pay" and premiums are being collected from the applicant's pay based on the full amount.

3.  Any change in the current level of coverage required written and notarized concurrence by the spouse prior to the effective date of the applicant's retirement.  Although the applicant's spouse submitted a written statement, it was not notarized or submitted in a timely fashion prior to the applicant's receipt of retired pay.

4.  Retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started to withdraw from the SBP.  The spouse’s written concurrence is required.  If the applicant elects to terminate his SBP participation at that time, he is advised that despite his action, no premiums will be refunded to those who opt to disenroll.  This deduction is the cost of the SBP coverage or protection the applicant's spouse enjoyed from the date the applicant made his initial election.  The decision to terminate SBP participation is permanent; retirees who disenroll are not eligible to reenroll at a future date.

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 did not submit evidence that would satisfy this requirement.  Regrettably, there is insufficient evidence that would warrant granting the relief requested.

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)                                         AR20080011716





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ABCMR Record of Proceedings (cont)                                         AR20080011716



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