IN THE CASE OF:	  

		BOARD DATE:	       10 February 2009

		DOCKET NUMBER:  AR20080018041 


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 correction of his records to show he elected not to participate in the Survivor Benefit Plan (SBP) and reimbursement of all premiums collected. 

2.  The applicant states, in effect, that his spouse received the Spouse Survivor Benefit Plan Concurrence Statement that was issued by the Retirement Services Office (RSO) of the U.S. Army Installation Management Command (IMCOM), Fort Drum, New York (NY), and signed it on 3 March 2008, indicating her concurrence with his election not to participate in the SBP.  He then completed the DD Form 2656 (Data for Payment of Retired Personnel) on 10 July 2008 and elected not to participate in the SBP.  He even received a letter from the Defense Finance and Accounting Service (DFAS) clearly indicating that he had elected not to be covered by this program.  However, his first Retiree Account Statement showed an SBP cost deduction for spouse and child(ren).  He immediately contacted DFAS officials, but was told that the DD Form 2656 was not completed properly and therefore SBP coverage was started by default.  

3.  The applicant provides the following additional documentary evidence in support of his request:

	a.  Letter, dated 26 February 2008, from the RSO, Fort Drum, NY.

	b.  Spouse SBP Concurrence Statement, dated 3 March 2008.


   c.  Letter, dated 8 October 2008, from DFAS-Retired and Annuity Pay.
	
   d.  Retiree Account Statements, dated 14, 15, and 16 October 2008.

	e.  DD Form 2656, dated 10 July 2008.

4.  On 29 January 2009, the applicant submitted a notarized statement, dated 27 January 2009, that shows his spouse concurs with his election not to enroll in the SBP. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is a retired first sergeant who enlisted in the Regular Army on 25 September 1984 and held military occupational specialty (MOS) 11Z (Infantryman).  He was honorably discharged on 30 September 2008 and placed on the retired list on 1 October 2008.  He was credited with 24 years and 6 days of active military service.  His last duty station prior to retirement was Fort Drum, NY.  

2.  On 26 February 2008, by certified mail, the RSO, IMCOM, Fort Dum, NY, mailed the applicant's spouse a letter advising her of the applicant's upcoming retirement and requested she complete the SBP Concurrence Statement.  The applicant’s spouse received, completed, and signed the SBP Concurrence statement on 3 March 2008 indicating that she agreed to “No coverage for spouse and child(ren)”; however, it is unclear if and when she returned this statement to the RSO.  

3.  On 10 July 2008, the applicant completed the DD Form 2656 and indicated that he was married and had a dependent son.  He further elected not to participate in the SBP and authenticated this form by placing his signature and date in the appropriate blocks in the presence of a witness (SBP counselor) who also authenticated this form by placing her signature and date in the appropriate blocks.  However, Section XII (SBP Spouse Concurrence) of this form is blank (was not authenticated by the applicant’s spouse).

4.  On 8 October 2008, the applicant received a letter from DFAS-Retired and Annuity Pay, Cleveland Center, welcoming him to the retired roll and explaining to him the different ways to correspond with DFAS.  This letter further showed that he elected not to be covered by the SBP.

5.  The applicant’s Retiree Account Statement, dated 14 October 2008, shows no SBP election reflected on his account.  However, his Retiree Account Statements, dated 15 and 16 October 2008, show SBP coverage for spouse and child(ren) at a $167.05 monthly cost.

6.  There is no record that the applicant attempted to terminate his participation in the SBP and there is no indication at DFAS that the applicant submitted any requests to terminate the SBP. 

7.  The ABCMR analyst of record telephonically contacted the Fort Drum, NY, RSO on 23 January 2009.  The RSO chief indicated that the applicant’s spouse was not located at Fort Drum, NY and that a certified letter that included the SBP Spouse Concurrence Statement was mailed to her; however, she did not return the letter or the acknowledgement.

8.  The ABCMR analyst of record also telephonically contacted the applicant on 23 January 2009.  The applicant stated that the SBP spouse concurrence statement was mailed back and that when the DD Form 2656 was forwarded to DFAS, the RSO did not attach and/or submit the SBP Spouse Concurrence Statement which resulted in an incomplete form.

9.  The ABCMR analyst of record telephonically contacted the DFAS Retired Pay Office on 23 January 2009, which confirmed that the DD Form 2656, dated 10 July 2008 was not authenticated by the spouse on or after the date the applicant made his election.  This defaulted the applicant’s coverage to spouse and child(ren) coverage.

10.  In a notarized statement, dated 27 January 2009, the applicant's spouse indicated that she had previously agreed with her husband's decision to not participate in the SBP and that she previously signed the one form provided by the Fort Drum, NY, RSO.  She reemphasizes that she does not want the SBP and that her husband should be reimbursed all premiums already deducted from his retirement check.

11.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election, once made, was irrevocable except in certain circumstances.  This Law also provides that every member having a spouse and/or child(ren), who retired/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list.

12.  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 provided less than maximum spouse coverage. 

13.  Section XII of the DD Form 2656 states that Title 10, U.S. Code, section 1448 requires that an otherwise eligible spouse concur if the member declines to elect SBP coverage, elects less than maximum coverage, or elects child only coverage.  Therefore, a member with an eligible spouse upon retirement, who elects any combination other than Items 26a or 26b and 27a, must obtain the spouse's concurrence in Section XII.  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.  If concurrence is not obtained when required, maximum coverage will be established for the spouse and child(ren), if appropriate.

14.  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. 

15.  Department of Defense Instruction 1332.42, Survivor Annuity Program Administration, requires that spousal consent be notarized in the case of a member electing less than the maximum SBP coverage or declines coverage.  The signature of the spouse must be notarized.  The requirement to have the spouse's signature notarized is not to suggest that the spouse has received additional counseling regarding the option being selected; it simply provides clarification that the spouse signed the form.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he elected not to participate in the SBP and he be given a refund all paid premiums.

2.  The evidence of record shows that in anticipation of his upcoming retirement, the applicant appears to have relocated his spouse from his permanent duty station to his place of retirement.  Accordingly, the RSO mailed the spouse an SBP concurrence statement.  However, it appears that this statement was not returned to the RSO. 


3.  The evidence of record further shows that the applicant submitted a DD Form 2656 wherein he elected, in the presence of an RSO counselor, not to participate in the SBP.  However, by law, his spouse was required to authenticate this form on or after the date he made this election.  The SBP spouse concurrence statement submitted by the applicant shows she concurred with his decision prior to the date he made that decision.  Therefore, his SBP coverage defaulted to the current coverage.

4.  Nevertheless, it appears that the applicant's intent was and continues to be not to participate in the SBP.  Although he failed to ensure he complied with the law in terms of obtaining his spouse's concurrence with this election on or after the date he made his election, the RSO counselor also failed to ensure the spouse concurred with his election on or after the date he made this election.

5.  In the interest of equity, the applicant's records should be corrected to show he elected not to participate in the SBP.  Furthermore, since the spouse has a vested interest in the SBP benefit, the requirement for her to concur with the applicant's election to not participate in the SBP is satisfied with his submission of the notarized statement electing to concur with the applicant's decision.

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:

   a.  showing that the applicant accurately completed the DD Form 2656 on
10 July 2008, electing not to participate in the SBP and that his spouse concurred with his decision on or after 10 July 2008;
   
   b.  that DFAS timely received and processed the DD Form 2656 with the spouse's concurrence of the applicant's SBP election; and
   
   c.  reimbursing any premiums already paid by the applicant as a result of this correction.


															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)                                         AR20080018041



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ABCMR Record of Proceedings (cont)                                         AR20080018041



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