IN THE CASE OF:	  

		BOARD DATE:	  	  9 October 2008

		DOCKET NUMBER:  AR20080012354 


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 that he declined participation in the Survivor Benefit Plan (SBP) and a refund of monies that have been collected in the way of SBP premiums since his retirement.

2.  The applicant states, in effect, that he and his wife waived SBP coverage at the time he was being processed for temporary disability retirement in December 2007.  However, he was going through a separation and he did not get the paperwork signed until 19 February 2008.

3.  The applicant provides a notarized Spouse SBP Election Concurrence Statement, dated 19 February 2008, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military service records show that he enlisted in the U.S. Army Reserve on 26 December 2002 and entered active duty in the Regular Army for a period of 3 years on 3 April 2003.  The applicant was honorably discharged on
9 September 2004 for the purpose of accepting a commission in the U.S. Army.

2.  On 10 September 2004, the applicant was appointed as a Reserve commissioned officer of the Army, in the rank of first lieutenant/pay grade O-2, in the Judge Advocate General Corps, and remained on active duty.  He was promoted to the rank of captain/ pay grade O-3 on 1 February 2005.

3.  The applicant's military service records contain a DA Form 4037 (Officer Record Brief), dated 31 October 2007.  Section IV (Personal/Family Data) of this document shows the applicant's marital status as "Married" and he had
4 dependent children, at that time.

4.  The applicant's military service records contain a copy of Headquarters, U.S. Army Garrison, Aberdeen Proving Ground, Aberdeen Proving Ground, Maryland, Orders 309-0002, dated 5 November 2007, that show the applicant was released from assignment and duty because of physical disability incurred while entitled to basic pay and placed on the Temporary Disability Retired List (TDRL), effective 20 December 2007.

5.  The applicant's military service records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty), issued at the time of his separation. This document shows the applicant entered active duty on 3 April 2003, was honorably retired based on temporary disability on 19 December 2007, and transferred to the U.S. Army Reserve (USAR) Control Group (U.S. Army Retired), St. Louis, Missouri.  At the time, he was credited with completing a total of 3 years, 3 months, and 10 days net active service this period and 1 year,
5 months, and 7 days total prior active service.

6.  In support of his application, the applicant provides a notarized Spouse's SBP Election Concurrence Statement, dated 19 February 2008.  This document lists the applicant's spouse's name and shows that she placed her initials next to the statement "I CONCUR with my spouse's SBP election to Decline SBP coverage." This document also shows that she placed her signature on this document and dated the document (i.e., "Feb 19 08").  This document further shows that it was signed in the presence of a witness (i.e., Captain Jason E_______, Judge Advocate General Corps, Fort George G. Meade, Maryland), a Notary Public.

7.  In the processing of this case, coordination was made with the Defense Finance and Accounting Service (DFAS), Liaison Department, General Processing Branch, Cleveland, Ohio, in order to verify information relevant to the applicant's SBP election.  This coordination confirmed that the applicant completed a DD Form 2656 (Data for Payment of Retired Personnel) on
13 December 2007.  This document shows in Section VIII (Dependency Information) that the applicant married Shana M. C______ on 21 December 1991.  This document also shows in Section IX (Survivor Benefit Plan (SBP) Election), Item 26 (Beneficiary Category(ies)), the applicant placed his mark in Box g (I Elect Not to Participate in SBP) and also entered a mark indicating "I Do Have Eligible Dependents Under the Plan."  This document further shows that Section XI (SBP Spouse Concurrence) is absent any indication the applicant’s 
spouse concurred with the SBP election made by the applicant or that she received information from the Retirement Services Officer (RSO) that explained the actions available and the effects of those options.  Section XII (Certification) of the applicant's DD Form 2656 shows the applicant and RSO placed their signatures on the document on 13 December 2007.  A copy of the spouse's SBP Election Statement was not on file at the DFAS.

8.  Public Law 92-425, the Survivor Benefit Plan (SBP), enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Title 10, United States Code, Chapter 73, provides the basic statutory provisions of SBP law.  This document provides that SBP was designed to give income protection not only to the retiree's spouse, but also to their children until they become self-supporting (i.e., until they are no longer dependents).

9.  Section 1448, Title 10, United States Code, provides that if a person makes an election not to participate in the SBP, the person's spouse shall be notified of that election.  Spousal concurrence is needed only when a married person elects to provide an annuity for his spouse at less than the maximum level or to provide an annuity for a dependent child but not for his/her spouse.

10.  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.

11.  Army Regulation 600-8-7 (Retirement Service Program) prescribes policies governing military personnel retirement services, the SBP, and the Chief of Staff, Army, Retiree Council.  Chapter 3 (Pre-Retirement Service Policy), paragraph
3-2 (Survivor Benefit Plan counseling policy), in pertinent part, provides that between the time the retirement application is submitted, but no less than
60 days before retirement, every Soldier and spouse must be counseled on the SBP, to include categories available under Title 10, United States Code, section 1448(a), and the effects of such elections in accordance with Title 10, United States Code, section 1455(b)(1).  This document also provides that whenever possible, SBP counseling of spouses will be conducted in person.  If the spouse is unavailable for counseling based on incapacitation or geographic location, prescribed SBP information will be mailed to the spouse using certified mail, restricted delivery, along with notification of the Soldier’s SBP election, a cost-benefit estimate, and a request for spouse concurrence with the election, if 

applicable.  This document further provides that by law, married Soldiers who fail to provide written spouse concurrence or an approved waiver of same before the date of retirement will be enrolled in full spouse SBP, or if any type of child/ children coverage is elected, full spouse and child/children SBP.  Married Soldiers who cannot obtain spouse concurrence because their spouse’s whereabouts are unknown, or because of exceptional circumstances, may request a waiver of the spouse concurrence requirement from the Chief, Army RSO.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show that he declined participation in the SBP and that all monies that have been collected by the DFAS for SBP premiums since he retired from active duty should be refunded because he was going through a separation and he did not get the paperwork signed by his wife until after the date of his retirement.

2.  The applicant’s contention that SBP premiums have been improperly withheld from his retired pay and should be refunded to him, along with the supporting document he provided, were carefully considered; however, he provides insufficient evidence to support his claim.

3.  The evidence of record shows that married Soldiers who cannot obtain spouse concurrence because their spouse’s whereabouts are unknown, or because of exceptional circumstances, may request a waiver of the spouse concurrence requirement from the Chief, Army RSO.  There is no evidence of record, and the applicant provides insufficient evidence, to show that a waiver of the spouse concurrence requirement was obtained from the Chief, Army RSO prior to the date of the applicant’s retirement.

4.  The evidence of record shows that whenever possible, SBP counseling of spouses will be conducted in person or, if the spouse is unavailable for counseling, the prescribed SBP information will be mailed to the spouse using certified mail, restricted delivery, along with notification of the Soldier’s SBP election, a cost-benefit estimate, and a request for spouse concurrence with the election.  While the authenticity of the applicant’s spouse’s SBP Election Concurrence Statement is not in question, and despite the absence of a waiver of the spouse concurrence requirement, this document alone does not provide sufficient evidence to establish that the strict regulatory requirements governing spousal SBP counseling were met.  Therefore, in view of all of the foregoing, there is insufficient evidence to support correction of the applicant’s records in this case.

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 has failed to submit evidence that would satisfy this requirement.  Therefore, there is no justification for granting the applicant's request.

6.  The applicant is advised that 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 applicant is also advised documentation confirming that his spouse was provided all aspects of the required SBP counseling by an RSO SBP counselor and the spouse's concurrence is required. However, the applicant is also advised that no premiums will be refunded to those who opt to disenroll.

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)                                         AR20080012354



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ABCMR Record of Proceedings (cont)                                         AR20080012354



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