IN THE CASE OF:
BOARD DATE: 30 APRIL 2009
DOCKET NUMBER: AR20080018648
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 show he elected not to participate in the Survivor Benefit Plan (SBP) program. He further requests a full refund of all SBP premium payments collected from his retired pay.
2. The applicant states that, prior to his retirement, he elected not to participate in the SBP program. He states he submitted a notarized Spouse SBP Election Concurrence Statement signed by his wife and concurring in his decision to decline SBP. After looking at his retired pay statement, he noticed SBP premiums were still being deducted from his retired pay. The applicant states that he has made several attempts to correct this error over the phone. He was told by the Defense Finance and Accounting Service (DFAS) that his spouses concurrence statement was invalid because the date she signed the statement and the date the statement was notarized did not match (i.e., 6 February 2008 versus 31 March 2008). The applicant further states that the date 31 March 2008 on the statement is the date that the Notary Publics commission expired, not the date the statement was notarized.
3. The applicant provides a notarized concurrence statement from his spouse, dated 6 February 2008; a memorandum from Area IV Support Activity, Unit 15015, TaeguTransition Station, dated 23 January 2008; and a Navy Federal Credit Union (NFCU) gram, dated 6 November 2008.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted into the Regular Army on 28 September 1987. He was promoted to the rank of Sergeant First Class (SFC) on 1 March 1998.
2. On 25 January 2008, the applicant completed a DD Form 2656 (Data for Payment of Retired Pay). Section IX (Survivor Benefit Plan Election) shows he elected not to participate in the SBP. Section XI (SBP Spouse Concurrence) does not contain the signature of the applicants spouse. The instructions for completing Section XI provide, Title 10 U.S. Code, Section 1448 requires that an otherwise eligible spouse concur if the member declines to elect SBP coverage
a member with an eligible spouse upon retirement, who elects any combination other than items 26.a. or 26.b. and 27.a., must obtain the spouse's concurrence in Section XI. 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 (emphasis added). If concurrence is not obtained when required, maximum coverage will be established for your spouse and child(ren) if appropriate.
3. On 6 February 2008, the applicant's spouse concurred with his SBP election not to participate by providing a signed, notarized Spouse SBP Election Concurrence Statement, dated 6 February 2008.
4. The applicant retired on 1 September 2008.
5. The applicant provides a 6 November 2008 NFCU (Navy Federal Credit Union) gram from the Notary Public who notarized his spouses SBP concurrence statement. The Notary Public stated the date he notarized the applicants spouses signature on the SPB concurrence statement was 6 February 2008.
6. 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.
7. Public Law 99-145, enacted 8 November 1985, but effective 1 March 1986, required a spouses written concurrence for a retiring members election that provides less than the maximum spouse coverage.
DISCUSSION AND CONCLUSIONS:
1. Evidence of record shows that the applicant elected not to participate in spousal SBP coverage on 25 January 2008 and his spouse concurred with his SBP election on 6 February 2008. He retired on 1 September 2008.
2. The DFAS did not accept the applicants spouses concurrence statement, dated 6 February 2008, because the Notary Publics commission expiration date of 31 March 2008 was interpreted as the date the statement was notarized.
3. It would, therefore, be just and equitable to show that the applicant elected not to participate in the SBP on 23 January 2008 and his spouse submitted a Spouse SBP Election Concurrence Statement properly signed and notarized on 6 February 2008, concurring in the applicants election not to participate in the SBP. Further, all SBP premium payments collected from the applicants retired pay should be refunded.
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. accepting the notarized Spouse SBP Election Concurrence Statement, dated 6 February 2008 as valid;
b. cancelling his participation in the SBP program; and
c. refunding all SBP premium payments collected from him.
_______ _ 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) AR20080018648
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20080018648
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