IN THE CASE OF:
BOARD DATE: 4 June 2009
DOCKET NUMBER: AR20080019169
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 her records be corrected to show she elected, with her spouse's concurrence, not to participate in the Survivor Benefit Plan (SBP) and reimbursement of SBP premiums deducted from her retired pay.
2. The applicant states that her spouse completed and returned the required paperwork to her finance office prior to her retirement.
3. The applicant provides a memorandum and a notarized statement from her spouse.
CONSIDERATION OF EVIDENCE:
1. The applicant's record shows she retired on 30 September 2008 in the rank of colonel.
2. The applicants DD Form 2656 (Data for Payment of Retired Personnel), dated 12 May 2008, shows she elected "Not to participate in the SBP" and placed an "X" in item 26g (I Elect Not to Participate in the SBP) and (Do Have Eligible Dependents Under the Plan). She further authenticated this form by placing her signature in item 32a (Member Signature) and the date "20080512" in item 32b (Member Date Signed). Furthermore, the witness also authenticated this form by placing his signature in item 33b (Witness Signature) and the date "20080512" in item 33c (Witness Date Signed).
3. The spouse did not sign Section XI (SBP Spouse Concurrence) indicating that he concurred with the applicant's election.
4. In the applicant's spouse's memorandum, subject: Retirement Processing of SBP, dated 4 November 2008, he said that he completed the SBP documents that were provided to him prior to the applicant clearing for retirement. He said that after careful consideration, he declined SBP and forwarded the documents in the self-addressed envelope that was provided to him. He added that in October 2008, the applicant said that finance erroneously deducted SBP payments from her pay. He said that this should be corrected immediately and the applicant's pay appropriately restored.
5. In a notarized statement dated 22 May 2009, the applicant's spouse declined SBP and said he understood that he would not be entitled to an SBP annuity if the applicant predeceased him.
6. Section XI 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. The 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.
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 provided less than maximum spouse coverage.
8. Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation. Retirees have a 1-year period beginning on the second anniversary of the date on which their retired pay started to withdraw from SBP. The spouses concurrence is required. No premiums will be refunded to those who opt to disenroll.
9. 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 verification that the spouse signed the form.
DISCUSSION AND CONCLUSIONS:
1. Evidence of record shows that the applicant declined SBP coverage on
12 May 2008. The spouse, by law, must concur with the member's decision to decline SBP coverage. The applicant's spouse submitted a memorandum stating that he declined SBP coverage and returned the documents in the self addressed envelope that was provided to him prior to the applicant's retirement. He has also submitted a notarized statement verifying that he declined SBP and understood that he would not be entitled to SBP annuity if the applicant predeceased him.
2. Given the above, it would be in the interest of justice to effect a change on the applicant's DD Form 2656 to show that the spouse concurred with the applicant's election and signed the form on 12 May 2008, the same date as the applicant.
3. In view of the foregoing evidence, and in the interest of equity, it is now appropriate to grant the applicant relief by correcting her SBP enrollment to show she elected not to participate with the spouse's concurrence and reimburse her all premiums paid since the date of her retirement.
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's spouse concurred with her election to decline SBP coverage and dated and signed the DD Form 2656, Section XI, on 12 May 2008; and
b. refunding to her any SBP premiums already deducted from her retired 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) AR20080019169
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ABCMR Record of Proceedings (cont) AR20080019169
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