IN THE CASE OF:
BOARD DATE: 14 MAY 2009
DOCKET NUMBER: AR20090001411
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 that he elected not to participate in the Survivor Benefit Plan (SBP).
2. The applicant states that on 21 April 2008, officials at Fort Carson, Colorado informed him that he could still change his mind regarding his SBP election as long as he did so before his retirement date. He goes on to state that although he originally elected to participate in the SBP, on 25 April 2008 he met with another official at Fort Carson and changed his SBP election to decline participation. However, the original election form was sent in instead and premiums are being deducted from his retired pay in error.
3. The applicant provides a copy of his marriage certificate; a copy of a DD Form 2656 (Data for Payment of Retired Personnel), dated 21 April 2008; a copy of a DA Form 2656, dated 25 April 2008; and a copy of his Retiree Account Statement
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 16 August 1982 and served through a series of continuous reenlistments. He was promoted to the pay grade of E-8 on 1 December 1999.
2. On 21 April 2008, the applicant completed a DD Form 2656 in which he elected to participate in the SBP under the "spouse only" option. The election was witnessed by the supervisor of the Fort Carson transition center.
3. On 25 April 2008, the applicant completed another DD Form 2656 in which he elected not to participate in the SBP. The applicant's spouse concurred with the election and the election was witnessed by another SBP counselor.
4. On 31 July 2008, the applicant was honorably released from active duty and transferred to the Retired List, effective 1 August 2008. He had served 25 years, 11 months, and 12 days of total active service.
5. The Retiree Account Statement provided by the applicant is dated 2 September 2008 and reflects that SBP (Spouse only) premiums are being deducted from his retired pay.
6. Title 10, U.S. Code, section 1448 provides, in pertinent part, that effective
1 March 1986, a married member is enrolled with spouse coverage on full retired pay at the time of retirement unless that spouse has concurred in writing to another election requested by the member pursuant to Department of Defense Financial Management Regulation, Volume 7B, Chapter 43. When the spouses concurrence is required, the signature indicating concurrence must be corroborated by one or more witnesses. This chapter also states, in pertinent part, that the Secretary of the Military Department concerned (or designee) may correct any election or any change or revocation of an election when the Secretary considers it necessary to correct an administrative error.
DISCUSSION AND CONCLUSIONS:
1. While SBP elections are normally deemed to be an irrevocable election, they can be changed prior to the effective date of retirement.
2. Evidence shows that the applicant's spouse accompanied the applicant to the transition center to sign the DD Form 2656 declining participation in the SBP. A proper official witnessed the election at the time and prior to the applicant's retirement.
3. However, for reasons that are not apparent in the available records, his initial election was forwarded to the Defense Finance and Accounting Service (DFAS) which has resulted in his enrollment in the SBP under the "spouse only" option.
4. Accordingly, since the applicant made the election not to participate in the SBP based on information that was provided to him by the appropriate personnel and those personnel forwarded the original election to participate in error, it would be in the interest of justice to correct his records at this time to show that he elected not to participate in the SBP and that all premiums paid to date be refunded to the applicant.
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 (and spouse) elected not to participate in the SBP on 25 April 2008;
b. that DFAS timely received and processed the applicant's 25 April 2008 SBP election; and
c. that the applicant be refunded all SBP premiums deducted to date.
_______ _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) AR20090001411
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ABCMR Record of Proceedings (cont) AR20090001411
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