IN THE CASE OF:	  

		BOARD DATE:	  4 June 2009

		DOCKET NUMBER:  AR20090002288 


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 correction of his records to show he elected Survivor Benefit Plan (SBP) coverage for child(ren) only instead of spouse and child(ren).

2.  The applicant states that prior to his retirement, he elected SBP coverage for children only and completed the necessary forms.  He adds that a Spouse SBP Election Concurrence Statement was mailed to his spouse and that she concurred with his election, signed, notarized, and returned this statement to the Transition Center in Korea.

3.  The applicant provides a copy of his DD Form 2656 (Data for Payment of Retired Personnel), dated 7 April 2008; a copy of his Spouse SBP Election Concurrence Statement, dated 7 April 2008; copies of Orders 098-0001 and   098-0002, issued by the Installation Management Command, Korea Region, on 7 April 2008; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 30 September 2009; and a copy of his Retiree Account Statement, dated 22 October 2008, in support of his request. 

4.  On 1 May 2009, the applicant submitted a notarized statement, dated 27 April 2009, indicating that his spouse concurs with his decision regarding his SBP election.





CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he enlisted in the Regular Army (RA) on 22 September 1988.  He was trained in and held military occupational specialty (MOS) 92A (Automated Logistics Specialist) and executed a series of extensions and/or reenlistments in the RA throughout his military career.

2.  The applicant’s records also show he married his spouse, C------, on 27 March 2004 at Fort Huachuca, AZ.

3.  On or around 1 June 2007, the applicant was reassigned to the 501st Signal Company, Korea, a restricted, without dependents tour.  His family remained at Sharpsburg, GA.

4.  On an unknown date in 2008 and in anticipation for his upcoming retirement, the applicant’s servicing Retirement Services Office (RSO) in Korea mailed the applicant’s spouse a Spouse SBP Election Concurrence Statement and instructed the spouse to complete, sign, notarize, and return this statement prior to "1 March 2008," the effective date of the applicant’s retirement.

5.  On 7 April 2008 and in anticipation of his upcoming retirement, the applicant completed a DD Form 2656.  He placed an "X" in item 26c (Survivor Benefit Plan Election) of Section IX, indicating that he elected coverage for child(ren) only.  

6.  Section XII (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 32b (Spouse-Date Signed) MUST NOT be before the date of the member's signature in item 30b (Member-Date Signed))."  However, item 32b does not contain the signature of the applicant’s spouse.

7.  On 7 April 2008, the Installation Management Command, Korea Region, published Orders 098-0001 and 098-00027, releasing the applicant from active duty effective 30 September 2008 and placing him on the retired list in his retired rank/grade of sergeant (SGT)/E-5 effective 1 October 2008. 

8.  On 17 April 2008, the spouse signed the Spouse SBP Election Concurrence Statement in the presence of a witness.  However, it is unclear if this statement was returned to the RSO in Korea.

9.  The applicant was honorably released from active duty on 30 September 2008 and placed on the retired list on 1 October 2008.  The DD Form 214 he was issued shows he completed 20 years and 9 months of creditable active service

10.  The applicant's Retiree Account Statement, dated 22 October 2008, shows an SBP deduction of $53.28 for spouse coverage and $0.47 for child coverage for a total of $53.75, indicating that he was covered under the SBP for spouse and child(ren) coverage.

11.  On 1 May 2009, the applicant submitted a notarized statement, signed by his spouse on 27 April 2009, concurring with his election to the child(ren) only coverage.

12.  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.

13.  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.

14.  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 contends that his records should be corrected to show he elected to participate in the SBP for child(ren) only coverage instead of spouse and child(ren) coverage.  

2.  The evidence of record shows that the applicant submitted a DD Form 2656 wherein he elected, in the presence of an RSO counselor, to participate in the SBP, child(ren) only coverage.  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 spouse's concurrence statement shows she 
concurred with his decision on the same date he made that decision.  It appears that the Transition Center in Korea did not receive the concurrence statement.  Therefore, his SBP coverage defaulted to the spouse and child(ren) coverage.  Shortly after he retired, he discovered the error on his Retiree Account Statement. 

3.  It is clear that the applicant's intent was to participate in the SBP for child(ren) only coverage.  Although there is no evidence that his spouse returned the concurrence statement to the RSO in Korea, it appears 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 to participate in the SBP for child(ren) only coverage.  Furthermore, since the spouse has a vested interest in the SBP benefit, the requirement for her to concur with the applicant's election to participate in the SBP for child(ren) only coverage is satisfied with the submission of the Spouse SBP Election Concurrence Statement, dated 17 April 2008, and the notarized statement, dated 27 April 2009, electing to concur with the applicant's decision.

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 the applicant accurately completed the DD Form 2656 on 7 April 2008, electing to participate in the SBP for child(ren) only coverage and that his spouse concurred with his decision on 17 April 2008 and that the Defense Finance and Accounting Service (DFAS) timely received and processed the DD Form 2656 with the spouse's concurrence with the applicant's SBP election; and

	b.  reimbursing any premiums already overpaid by the applicant as a result of this correction.



      __________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)                                         AR20090002288



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090002288



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1