IN THE CASE OF:
BOARD DATE: 21 May 2009
DOCKET NUMBER: AR20080016611
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 election under the Survivor Benefit Plan (SBP) be changed from full coverage to no survivor coverage.
2. The applicant states, in effect, that he and his spouse declined enrollment into the SBP upon retirement. The applicant further states, in effect, that the Defense Finance and Accounting Service (DFAS) did not receive his retirement paperwork until after he retired so the SBP deductions automatically started and never stopped even after they received his paperwork.
3. The applicant provides a copy of his DD Form 2656 (Data for Payment of Retired Personnel) and a notarized statement from his spouse in support of this application.
CONSIDERATION OF EVIDENCE:
1. The applicant retired from the United States Army on 30 September 2006 after serving for 22 years, 9 months, and 4 days.
2. Item 30a of section XI of the DD Form 2656, which is required when a member is married and does not elect full spouse coverage or declines coverage, shows that the spouse did sign (on 24 June 2006) the spousal concurrence block on the form, although prior to the date (26 June 2006) that the applicant signed the form. However, the document shows that her signature was witnessed.
3. On 10 October 2008, the applicant's spouse provided a notarized statement indicating that she elected to not participate in the SBP at the time of the applicant's retirement and still declines to participate in the program.
4. Department of Defense Financial Management Regulation, volume 7B, chapter 43, provides guidance on SBP elections. This chapter states, in pertinent part, that effective 1 March 1986, a married member is enrolled with spouse coverage on full retired pay at the time of retirement unless that spouse has concurred in writing to another election requested by the member. When the spouses concurrence is required, the signature indicating concurrence must be corroborated by one or more witnesses. This chapter also states, in pertinent part, that the Secretary of the Military Department concerned (or designee) may correct any election or any change or revocation of an election when the Secretary considers it necessary to correct an administrative error.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that his election under the SBP should be changed from full coverage to no survivor coverage was carefully considered and found to have merit.
2. The evidence of record clearly shows that the applicant elected not to participate in the SBP. The evidence of record shows that his spouse concurred with his election, although she concurred prior to him making the election, and that this spousal concurrence was properly witnessed. Therefore, he is entitled to correction of his military records to show that he elected not to participate in the SBP, that his spouse concurred with his election on 26 June 2006, and that he is entitled to reimbursement of any SBP deductions from his retired military pay.
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 that he elected not to participate in the SBP, that his spouse concurred with his election on 26 June 2006, and that DFAS reimburse the applicant any SBP deductions already deducted from his retired military pay.
____________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) AR20080016611
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ABCMR Record of Proceedings (cont) AR20080016611
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