IN THE CASE OF:	  

		BOARD DATE:	       24 February 2009

		DOCKET NUMBER:  AR20090001582 


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 and his spouse request reconsideration of his earlier request for correction of his records to show he timely elected not to participate in the Survivor Benefit Plan (SBP).

2.  The applicant's spouse states that the reasons provided in the original decision to deny her husband's request were unjust.  Specifically, she addresses the following issues:

	a.  She and her husband were not interested in the SBP and made a joint decision to purchase commercial life insurance prior to his retirement, and that the monthly insurance premiums plus the SBP premiums are causing them a financial hardship.

	b.  The Board's letter informed her husband that he could request a reconsideration after 1 year which is not acceptable and placed the blame on her husband rather than the Fort Myer, Virginia, Retirement Services Office (RSO).

	c.  The RSO mailed her a personal letter informing her of the need to consent with her husband's decision; however, at no time did the RSO indicate the suspense date to complete and return this letter.  The RSO, in effect, failed to provide a complete briefing or emphasize any sense of urgency regarding a response time.

	d.  In its analysis, the Board referred to several Public Laws and Title 10 of the U.S. Code with an expectation that Soldiers should know these laws.  It should be the RSO's job to brief and explain these laws to Soldiers.

	e.  The April 2006 version of the DD Form 2656 (Data for Payment of Retired Personnel) did not include a statement that the spouse must concur "before the retirement/transfer date" as stated in paragraph 1 of the ABCMR's Record of Proceedings, dated 15 January 2009.

	f.  Her husband personally contacted the Fort Myer RSO immediately after retirement to resolve this administrative error.  An RSO official even signed a statement clearly showing that he did not advise her or her husband that her concurrence was needed before her husband retired.

	g.  She and her husband acted in good faith, based on the information available at the time and within their financial condition, and should not be subjected to any more financial hardship.

3.  The applicant's spouse provides a copy of a statement, dated 22 January 
2009, from an RSO official and a copy of the Fort Myer RSO Pre-Retirement Briefing Agenda in support of her husband's request.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080012463, on 15 January 2009.

2.  The applicant submitted a statement, dated 22 January 2009, from the Fort Myer RSO and a new argument in the form of an electronic mail (email) message, dated 9 February 2009, from his wife, which were not previously reviewed by the ABCMR.  Therefore, they are considered new evidence and as such warrant consideration by the Board.

3.  The applicant is a retired command sergeant major who entered the Regular Army on 26 February 1979, held military occupational specialty 71L (Administrative Specialist), and served in various staff and command positions throughout his distinguished career.  He retired from the Army on 1 July 2008 with over 29 years of active Federal service.


4.  In anticipation of his upcoming retirement, the applicant completed a DD Form 2656 on 28 April 2008.  He placed an X in item 26g (Survivor Benefit Plan Election) of Section IX, indicating that he elected not to participate in the SBP.

5.  Section XI (SBP Spouse Concurrence) of the DD Form 2656 instructs the applicant that "SBP spouse concurrence is required when a member is married and elects child(ren) only coverage, does not elect full spouse coverage, or declines coverage.  The date of the spouse's signature in item 30b (Spouse-Date Signed) must not be before the date of the member's signature in item 32b (Member-Date Signed))."  However, item 30b does not contain the signature of the applicant’s spouse.

6.  On 5 May 2008, the Fort Myer RSO mailed the applicant's spouse a certified letter.  The letter was postmarked 20 May 2008 and not delivered until 10 June 2008 due to the applicant and his spouse having been out of town.  The letter stated "Your spouse, [Applicant], has requested retirement from the military service to be effective July 1, 2008.  He has made a decision electing not to participate in Survivor Benefit Plan.  To help you understand the impact of this decision, I have enclosed a fact sheet describing SBP in more detail."  The applicant's spouse was asked to review the document, sign it before a notary and return the statement form.

7.  The applicant retired on 1 July 2008.

8.  The applicant's Retiree Account Statement, dated 9 July 2008, shows an SBP deduction of $268.84 for spouse only coverage, indicating that he was covered under the SBP for spouse coverage.

9.  On 11 July 2008, by email, the applicant notified the Fort Myer RSO that he and his spouse declined the SBP and that he was surprised when he saw the deduction on his Retiree Account Statement.  He further requested the deductions be stopped effective 1 August 2008.  By email, the Fort Myer RSO notified the applicant that his spouse did not concur with his election prior to his retirement which defaulted his SBP election to spouse, full coverage.

10.  On 14 July 2008, the applicant's spouse concurred with his SBP election to decline coverage; she signed and had the document notarized.  The document was forwarded to the RSO at Fort Myer.



11.  On 21 August 2008, the applicant submitted an on-line inquiry to the Defense Finance and Accounting Service (DFAS) regarding his SBP.  He was notified on 13 August 2008 that the DD Form 2656 he completed on 4 April 2008 was invalid since his spouse signed it after his retirement date.

12.  In a statement, dated 22 January 2009, an RSO official of the Fort Myer Military Community stated that he briefed the retiree on 28 April 2008 regarding the SBP and that he went over the DD Form 2656 line by line.  He also stated that he briefed the retiree that since his wife was going to be out of town, a letter would be mailed to her.  He added that he did not inform the retiree that her statement must be mailed back before his retirement date to avoid automatic collection and that he did not specify a suspense date as to when she must return her statement to him.

13.  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.  The election must be made prior to the effective date of retirement or else coverage automatically defaults to spouse coverage, if applicable.

14.  Public Law 99-145, enacted 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.

15.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and his spouse contend that his records should be corrected to show he elected not to participate in the SBP and that all premiums collected should be refunded.





2.  The evidence of record shows that the applicant submitted a DD Form 2656 wherein he elected, in the presence of an RSO counselor, not to participate in the SBP.  However, by law, his spouse was required to authenticate this form on or after the date he made this election but prior to the date of his retirement.  The SBP spouse concurrence statement shows she concurred with his decision after the date he made that decision but not before he retired.  Therefore, his SBP coverage defaulted to the spouse coverage.  Shortly after he retired, he discovered the error on his Retiree Account Statement and made several attempts to resolve this error.

3.  It is very clear that the applicant's intent was and continues to be not to participate in the SBP.  Although he failed to ensure he complied with the law in terms of obtaining his spouse's concurrence with this election on or after the date he made his election and prior to his retirement, the RSO counselor also failed to inform him or his spouse that her SBP concurrence statement was required before the effective date of his retirement.

4.  In the interest of equity, the applicant's records should be corrected to show he elected not to participate in the SBP.  Furthermore, since the spouse has a vested interest in the SBP benefit, the requirement for her to concur with the applicant's election to not participate in the SBP is satisfied with his submission of the spouse's email message electing to concur with the applicant's decision and her earlier notarized declination.

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 amendment of the ABCMR’s decision in Docket Number AR20080012463, dated 15 January 2009.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that the applicant accurately completed the DD Form 2656 on 28 April 2008, electing not 

to participate in the SBP and that his spouse concurred with his decision on or after 28 April 2008 but before his retirement date; that DFAS timely received and processed the DD Form 2656 with the spouse's concurrence with the applicant's SBP election; and reimbursing any premiums already paid by 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)                                         AR20090001582



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ABCMR Record of Proceedings (cont)                                         AR20090001582



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