IN THE CASE OF:
BOARD DATE: 3 February 2009
DOCKET NUMBER: AR20080014835
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 military records be corrected to show that he elected not to participate in the Survivor Benefit Plan (SBP) and that his wife concurred with his election.
2. The applicant states, in effect, that a SBP premium in the amount of $300.11 is currently being deducted from his retired pay. He contends that he and his spouse clearly indicated that they did not want the SBP coverage on his DD Form 2656 (Data for Payment of Retired Personnel).
3. The applicant provides a DD Form 2656; a marriage certificate; and Retiree Account Statements in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant's DD Form 2656, dated 21 March 2008, shows he elected not to participate in the SBP. Section XI (SBP Spouse Concurrence (Required when member is married and elects children only coverage, does not elect full spouse coverage, or declines coverage)) on this DD Form 2656 shows the applicant's spouse concurred with his election on 20 March 2008 (one day prior to the applicant's election).
2. On 30 June 2008, the applicant retired in the rank of command sergeant major.
3. The applicant provided a Retiree Account Statement, dated 20 August 2008, which shows that he was enrolled in the SBP for spouse coverage.
4. On 24 December 2008, the applicants spouse provided a written statement concurring with his decision to change his SBP coverage from spouse coverage to I elect not to participate in SBP.
5. 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. Elections are made by category, not by name.
6. 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.
DISCUSSION AND CONCLUSIONS:
1. Although the applicant's spouse concurred with his SBP election on the DD Form 2656, her concurrence was dated prior to his SBP election. As a result, the applicant was automatically enrolled in the SBP for spouse coverage.
2. Since it appears the applicant's spouse intended to concur with an election of no coverage at the time of the applicant's election and has reaffirmed her concurrence within a reasonable period of time after his retirement, it would be equitable to correct his records to show he elected not to participate in the SBP in a timely manner.
BOARD VOTE:
____x____ ____x____ ____x____ 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
showing the applicant's spouse concurred with his election not to participate in the SBP on 21 March 2008 on the DD Form 2656.
_______ _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) AR20080014835
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ABCMR Record of Proceedings (cont) AR20080014835
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