IN THE CASE OF:
BOARD DATE: 10 March 2009
DOCKET NUMBER: AR20080017807
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 Survivor Benefit Plan (SBP) coverage be cancelled.
2. The applicant states, in effect, that he believes his SBP should be cancelled because he elected not to participate and his spouse concurred. He also states, in effect, that his spouse forgot to date the DD Form 2656 (Data for Payment of Retired Personnel) when she signed it; however, the form was notarized on 26 June 2008.
3. In support of his application, the applicant provides copies of his DD Form 2656 and his Retiree Account Statement.
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 15 September 1968. His military records show he enlisted in the United States Army Reserve on 21 December 1988. He was ordered to and entered on active duty on 27 May 1998.
2. On 25 June 2008, the applicant completed a DD Form 2656. In Section V (Designation of Beneficiaries for Unpaid Retired Pay) of this form he indicated that he was married and had no dependent children. Section IX (SBP Election), shows he elected not to participate in SBP. In Section XIII (SBP Spouse Concurrence) is an indication the applicant's spouse concurred with his election and her signature was notarized on 26 June 2008, as required. The DD Form 2656 shows she failed to date the form when she signed it.
3. The applicant was separated from active duty in pay grade E-8 on 30 September 2008 and was permanently retired due to disability.
4. The applicant submits a copy of his Retiree Account Statement for the month of November 2008 that shows SBP spouse-only cost is being deducted from his retired pay.
5. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP 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, and are irrevocable except as provided for by law.
6. The instructions listed on the DD Form 2656-5, Section XII, show that spousal concurrence is required when a member is married and declines SBP coverage. The instructions also state that the date of the spouse's signature should be entered in item 32b (Date Signed) and must not be before the date of the member's signature, and the spouse's signature must be notarized.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that he elected not to participate in the SBP and his spouse concurred with his election. The evidence of record shows he completed a DD Form 2656 on 25 June 2008. He indicated at that time that he was married, had no dependent children, and declined to participate in the SBP. His spouse indicated she concurred with the applicant's election not to participate in SBP by signing the form which was notarized on 26 June 2008.
2. The evidence of record also shows the applicant was separated from active duty on 30 September 2008. His Retiree Account Statement for the month of November 2008 shows SBP spouse-only cost is being deducted from his retired pay.
3. Considering the facts and circumstances of this case, it would now be appropriate, as a matter of fairness and equity, to correct his records to show that prior to his retirement he elected not to participate in SBP with spousal concurrence. It would be in the interest of justice to cancel his SBP spouse-only coverage and to return to him any premiums that may have been collected since his retirement.
4. In view of the foregoing, the applicants records should be corrected as recommended below.
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 he elected not to participate in the Survivor Benefit Plan with spousal concurrence prior to his retirement, that his spouse properly signed the DD Form 2656 on 26 June 2008 indicating her concurrence, and by returning all premiums thus far paid since his retirement.
___________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) AR20080017807
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ABCMR Record of Proceedings (cont) AR20080017807
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