IN THE CASE OF:	  

		BOARD DATE:	        11 JUNE 2009

		DOCKET NUMBER:  AR20090001340 


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, correction of his DD Form 2656 (Data for Payment of Retired Personnel) to show his spouse concurred with his election made on 27 October 2008, not to participate in the Survivor Benefit Plan (SBP), by showing that date in block 32b (Date Signed).  He also requests an expedited refund of all SBP costs deducted from his retired pay.

2.  The applicant states, in effect, that his spouse failed to date the DD Form 2656 (block 32b) and the error was overlooked by himself and the notary.  He states that the Defense Finance and Accounting Service (DFAS) Retired and Annuity Pay office explained that any error on the DD Form 2656 results in the retiree automatically being enrolled in the SBP.

3.  The applicant provides a copy of his DD Form 2656; DD Form 214 (Certificate of Release or Discharge from Active Duty); Orders 204-12, dated 22 July 2008, assigning him to the U.S. Army Transition Point, Fort Bragg, NC, effective         31 December 2008; and his DFAS-CL 7220/148 (Retiree Account Statement) in support of this application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he enlisted in the Regular Army (RA) on
1 May 1984 and was awarded military occupational specialty (MOS) 92R (parachute rigger).  He remained on active duty until he was honorably released 

from active duty on 31 December 2008 by reason of sufficient service for retirement and placed on the retired list the following day.  The highest rank/grade he attained while serving on active duty was sergeant major (SGM)/E-9.

2.  The applicant provides a copy of a DD Form 2656, signed and dated by himself and a witness on 27 October 2008, which shows he elected not to participate in the SBP.  The form also shows it was notarized on the same date.  However, while his spouse's signature appears in block 32a (Spouse Signature) of the document indicating she concurred with his election not to participate in SBP, there is no date entered in block 32b of the form indicating when she signed the form.

3.  Public Law 92-425, the SBP, enacted on 21 September 1972, established the SBP.  It 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.  An election, once made, is permanent and irrevocable except as provided for by law.

4.  Public Law 99-145, enacted on 8 November 1985 (but effective 1 March 1986), required a spouse's written concurrence for a retiring member's election that provides less than the maximum spouse coverage.

5.  Public Law 105-85, enacted on 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.  The effective date of termination is the first day of the first calendar month following the month in which the election is received by the Secretary concerned.

6.  The instructions for completing Section XII - SBP Spouse Concurrence 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 member's retirement/transfer date.  If concurrence is not obtained when required, maximum coverage will be established for the spouse and child(ren), if appropriate.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the missing date in block 32b on DD Form 2656 following his spouse's signature is an error that was overlooked by himself and the notary was carefully considered.

2.  While it is incumbent on all parties involved to insure that documents, particularly with financial implications of the nature of the DD Form 2656, be completed with meticulousness, in this case three individuals apparently did not notice that the applicant's spouse did not date the form.  As such, it would be in the interest of justice for the applicant's records to be corrected to show that his spouse dated the DD Form 2656 on 27 October 2008, the date it was notarized. 

3.  As such, it would be appropriate to correct the applicant's records to show the entry of "20081027" as the date his spouse dated block 32b of the DD Form 2656.

4.  As for the applicant's request for an expedited refund of the costs of the SBP already deducted from his retired pay account, the ABCMR only corrects military records.  DFAS is responsible for refunding the premiums owed to the applicant as a result of this correction.  Therefore, there is no basis for the ABCMR granting this portion of the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x____  ____x____  ___x_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  affixing the date "20081027" in block 32b of the applicant's DD Form 2656, thereby showing that the applicant's spouse concurred with the applicant's election to decline participation in the SBP in the prescribed manner; and

	b.  showing that DFAS timely received and processed the SBP declination in a timely manner.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to expediting any refund of SBP payments due to 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)                                         AR20090001340



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ABCMR Record of Proceedings (cont)                                         AR20090001340



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