IN THE CASE OF:
BOARD DATE: 16 June 2009
DOCKET NUMBER: AR20080020073
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 records be corrected to show that he declined participation in the Survivor Benefit Plan (SBP).
2. The applicant states that he and his spouse declared that they did not want SBP during the Army Career and Alumni Program (ACAP) procedures at Fort Benning, GA and they signed a form. He states he just received his first retiree account statement and it shows that SBP premiums were deducted. He contacted the Defense Finance and Accounting Service (DFAS) and was told that the form was signed by his spouse and himself but it was not notarized. The applicant claims that a person took the statement from his spouse and himself and notarized the document.
3. The applicant provides a copy of his DD Form 2656 (Data for Payment of Retired Personnel) in support of his application.
CONSIDERATION OF EVIDENCE:
1. After having prior active and inactive service, the applicant was appointed as a commissioned officer on 13 September 1996 in the Regular Army (RA). He was married on 5 May 2006.
2. He was promoted to the rank of major on 1 April 2007.
3. The applicant completed a DD Form 2656 and signed this form on 2 June 2008. He placed an X in item 26g indicating that he declined to participate in SBP and that he had eligible dependents under the plan. His spouse signed the DD Form 2656 under Section XII (SBP Spouse Concurrence) to indicate she concurred with the SBP decision made by her spouse.
4. In item 33 (Notary Witness) of the DD Form 2656, the notary signed the document but the notary seal was omitted.
5. The applicant was released from active duty on 30 September 2008 and placed on the retired list on the following day.
6. By a 4 May 2009 letter, a staff of the Board notified the applicant to provide an up-to-date concurrence with a notarized cancellation request from his spouse. His spouse provided a notarized statement, dated 13 May 2009, indicating she concurred with the applicant's election not to participate in the SBP.
7. 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.
8. 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. The applicant completed and signed a DD Form 2656 on 2 June 2008. However, even though his spouse signed the DD Form 2656 indicating she concurred with his decision to decline participation in the SBP, the form was not notarized as required. As a result, he was automatically enrolled in the SBP.
2. The applicant's spouse provided an up-to-date concurrence with his cancellation request of his SBP election.
3. It appears that it was the applicant's and his spouses intent to decline participation in the SBP. Therefore, as a matter of equity, it would be appropriate to amend the applicants DD Form 2656 to show he declined to participate in the SBP in a timely manner and to refund him any paid premiums.
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 the DD Form 2656 of the individual concerned be amended to show he and his spouse signed the form in a timely manner declining to participate in the SBP, that it was properly notarized, and it was received and accepted for processing by DFAS, thus resulting in his never being enrolled in the SBP and being due a refund of all SBP premiums already deducted from his retired pay account.
_________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) AR20080020073
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ABCMR Record of Proceedings (cont) AR20080020073
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