IN THE CASE OF:	  

		BOARD DATE:	        03 FEBRUARY 2009

		DOCKET NUMBER:  AR20080017020 


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 that his records be corrected to reflect that he and his spouse elected not to participate in the Survivor Benefit Plan (SBP) and that he be reimbursed for all back SBP payments he has made since his retirement.

2.  The applicant states, in effect, that he specifically opted not to participate in the SBP and yet was automatically enrolled with full spouse coverage because the retirement administrator failed to inform him that his spouse had to sign the form again.

3.  The applicant provides a Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate (DD Form 2656-5) dated 1 August 2004, a DD Form 2656-5 dated 25 January 2008, a copy of his Summary of Retired Pay Account dated 27 August 2008, and a copy of an electronic mail (e-mail) message from a Retirement Services official at the National Guard Management Office in Jefferson City, Missouri.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 2 June 1948 and was inducted on 31 October 1968.  He completed his training and was transferred to Vietnam on 19 June 1969, where he served as a light weapons infantryman until 18 June 1969, when he was transferred to Fort Lewis, Washington, and was honorably released from active duty as an overseas returnee.  He was transferred to the United States Army Reserve (USAR) Control Group (Annual Training) to serve the remainder of his statutory service obligation.
2.  On 12 September 1982, he enlisted in the Missouri Army National Guard (MOARNG) and in 1983, he was appointed as an aviation warrant officer one.  He continued to serve in MOARNG as an aviator and was promoted to the rank of chief warrant officer five on 6 April 2007.

3.  Meanwhile, on 7 May 2003, a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) was dispatched to the applicant informing him that he had 90 days in which to make an election of coverage under the Reserve Component Survivor Benefit Plan (RCSBP) and that failure to do so would automatically result in his being enrolled under full coverage.

4.  On 1 August 2004, the applicant completed a DD Form 2656-5 in which he elected Option A, declining to make an election until age 60.  His spouse also signed the form in concurrence of the option elected.  The Retirement Services Officer (RSO) witnessed the election and signature at the time.

5.  On 25 January 2008, the applicant again signed a DD Form 2656 and again elected not to participate in the SBP.  However, his wife's signature of concurrence was not on that form.  The same RSO also witnessed that form.

6.  On 30 June 2008, the applicant was discharged from the MOARNG and was transferred to the USAR Control Group (Retired).  He had over 27 years of creditable service for retired pay purposes.

7.  The applicant's 27 August 2008 Summary of Retired Pay Account reflects that the applicant's SBP Election Certificate was not received and he was enrolled under full spouse coverage.

8.  In an 18 September 2008 e-mail from the RSO to the applicant, the RSO apologized to the applicant for not properly completing the DD Form 2656 because she thought that because he had opted out of the SBP originally, his spouse's signature was not required again.  She admitted that it was her mistake and indicated that it was her hope that the Board would approve his request and refund his premiums.

9.  In the processing of this case a staff member of the Board contacted the applicant's spouse telephonically in an attempt to ascertain if the spouse had ever actually signed a DD Form 2656 in 2008 concurring with the applicant's option to opt out/decline SBP.  She informed the staff member that she and her husband had made a special trip to Jefferson City to sign the form again in front of the RSO, whom she named without hesitation.  She also agreed to fax a copy of the form to the staff member and has done so.  The Board has received a notarized DD Form 2656 faxed from the spouse in which she concurs with the applicant's decision not to participate in the SBP.

10.  Public Law 95-397, the Reserve Component SBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 (and participate in SBP), to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A) elect to decline enrollment and choose at age 60 whether to start SBP participation, (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday, (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay (costs for option C being the more expensive).  Once a member elects either options B or C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP – it automatically rolls into SBP coverage.  If RCSBP option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60.

11.  Title 10 United States Code, section 1448, provides, 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 pursuant to Department of Defense Financial Management Regulation, Volume 7B, chapter 43.  When the spouse’s concurrence is required, the signature indicating concurrence must be corroborated by one or more witnesses.  Section 1454 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 he elected to decline participation in the SBP has been noted and found to have merit.  While the evidence shows that he made his election not to participate in the SBP on 25 January 2008, he did so without his spouse's concurrence.  Accordingly, because his election was not considered a valid election without his spouse's concurrence, the DFAS automatically enrolled him under full spouse coverage.

2.  However, the evidence provided by the applicant clearly shows that his failure to have his spouse concur with his election not to participate was through no fault of his own.  The RSO has clearly indicated that she was unaware of the requirement to have the spouse sign the DD Form 2656 a second time and therefore the error that occurred was the result of the applicant being improperly advised at the time he made his election.

3.  Fortunately, the spouse has signed the form and has indicated verbally to a staff member of the Board that she concurs with the applicant's option not to participate in the SBP.

4.  Accordingly, it would be in the interest of justice to correct the applicant's records to show that he properly completed his DD Form 2656 on 25 January 2008 and declined with his spouse's concurrence, to enroll in the SBP.

5.  Additionally, the applicant is entitled, as a result of this change, to be reimbursed all SBP deductions taken from his retired 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, and that his spouse concurred with his election on 25 January 2008, and paying him back any SBP deductions taken from his retired military pay.



      _________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)                                         AR20080017020





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ABCMR Record of Proceedings (cont)                                         AR20080017020



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