IN THE CASE OF:	  

		BOARD DATE:	        15 January 2009

		DOCKET NUMBER:  AR20080012463 


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, that his DD Form 2656 (Data for Payment of Retired Personnel), dated 4 April 2008, be corrected to show he timely elected not to participate in the Survivor Benefit Plan (SBP).

2.  The applicant states he elected not to participate in the SBP; however, he is currently having spouse-only full coverage SBP deductions taken from his retired pay.  The applicant further states that he attended his Pre-Retirement Briefing in April 2008 and does not recall the briefer, a Retirement Services Officer (RSO) at Fort Myer, VA, stating that his spouse had to sign the concurrence portion of the DD Form 2656 by a certain [retirement] date.

3.  On 5 May 2008, the RSO sent the applicant’s spouse a letter informing her that the applicant had elected not to participate in the SBP.  He attached an information fact sheet concerning the SBP and an election form for her to sign and have notarized concurring, or nonconcurring, with her spouse’s election.  The applicant’s spouse signed the form before a Notary Public on 14 July 2008.

4.  In a letter to the RSO at Fort Myer, the applicant’s spouse states although the original letter was dated 5 May 2008, it was not delivered by the US Postal Service until 10 June 2008.  With her daughter’s college graduation and a family reunion, she was unable to have the election form signed and notarized until 14 July 2008, two weeks after the applicant’s retirement.  She states the RSO letter did not specify a timeline and did not express a sense of urgency.  She adds she, too, attended the Pre-Retirement Briefing in April 2008 and does not recall the briefer stating that spouses must sign the spousal concurrence form by a certain date or an automatic deduction would occur based upon a default election of full coverage, spouse only.

5.  The applicant provides the front-page of a DD Form 2656, dated 21 July 2008; the back-page of a DD Form 2656, dated 28 April 2008; a letter from Headquarters, United States Army Garrison, Fort Myer, dated 5 May 2008; a City of Manila, Province of Philippine Marriage Contract, dated 18 December 1978; a letter addressed to the RSO, dated 11 July 2008; a Notarized SBP election, dated 14 July 2008; a 5-page e-mail, with dates of July 2008 through August 2008; a Retiree Account Statement from the Defense Finance and Accounting Service (DFAS), a letter addressed to DFAS, dated 21 July 2008; a letter from DFAS, dated 9 July 2008; a U.S. Postal Service, Track and Confirm document; and a copy of a letter post marked 20 May 2008. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 26 February 1979.  He was promoted to Command Sergeant Major (CSM) on 1 December 2001.  

2.  On 4 April 2008, the applicant completed a DD Form 2656.  Section IX (Survivor Benefit Plan Election) shows he elected not to participate in the SBP.  Section XI (SBP Spouse Concurrence) does not contain the signature of the applicant’s spouse.  The instructions for completing Section XI are, “Title 10 U.S. Code, Section 1448 requires that an otherwise eligible spouse concur if the member declines to elect SBP coverage,...a member with an eligible spouse upon retirement, who elects any combination other than items 26.a. or 26.b. and 27.a., must obtain the spouse's concurrence in Section XI.  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 (emphasis added).  If concurrence is not obtained when required, maximum coverage will be established for your spouse and child(ren) if appropriate.”

3.  On 5 May 2008, the RSO at Fort Meyer, Virginia mailed the applicant's spouse a certified letter.  The letter was post marked 20 May 2008 and not delivered until 10 June 2008, due to the applicant and his spouse having been out of town.  The letter stated "Your spouse, CSM R________ G. A______ has requested retirement from the military service to be effective July 1, 2008.  He has made a decision, electing not to participate in Survivor Benefit Plan.  To help you understand the impact of this decision, I have enclosed a fact sheet describing SBP in more detail."  The applicant's spouse was asked to review the document, sign it before a notary and return the statement form. 

4.  The applicant retired on 1 July 2008.

5.  The applicant provided a copy of his Retiree Account Statement, with an effective date of 9 July 2008, showing SBP spouse only costs had been deducted from his retired pay.

6.  On 14 July 2008, the applicant's spouse concurred with his SBP election, she signed and had the document notarized.  The document was forwarded to the RSO at Fort Meyer, Virginia.

7.  Public Law 92-425, the 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.  

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 provides less than the 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.  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 contends that he does not recall that the briefer informed him that his spouse must sign the consent form by a certain date if they declined SBP coverage.  However, if he had any questions, the applicant, a senior noncommissioned officer, had a responsibility to himself to obtain information on the SBP prior to signing any document presented to him.  The instructions on the DD Form 2656 specifically stated spouse's concurrence must be obtained and dated on or after the date of the member's election, but before the retirement/transfer date.

2.  Evidence of record shows that the applicant retired on 1 July 2008.  His spouse failed to provide concurrence to his declination of SBP coverage until 
14 July 2008.  This made the applicant's DD Form 2656 invalid and he was automatically enrolled in the SBP for spouse coverage.  The SBP statute states that retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from SBP; however, again, the spouse's concurrence is required.

3.  In view of the foregoing, there is no basis for granting the applicant's request.  He may withdraw, with his spouse's concurrence, during the one year period beginning 1 July 2010 and ending 30 June 2011.

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.



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      _______ _   _______   ___
       	   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)                                         AR20080012463





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ABCMR Record of Proceedings (cont)                                         AR20080012463



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