DOCKET NUMBER: AR20090002692
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 her military records be corrected to show she elected not to participate in the Survivor Benefit Plan (SBP).
2. The applicant states, in effect, that she elected not to participate in the SBP when she out-processed with the Retirement Services Officer (RSO) at Fort Carson, Colorado. She states that her spouse was not with her at the time and that the RSO mailed her spouse the paperwork to concur with her SBP election. The applicant states her spouse received the documents, he concurred with her SBP election, he had the SBP election notarized, and he mailed the documents back to the RSO. The applicant states for some reason the documents were misplaced and did not reach the RSO in time. She states she is being charged for SBP that she never wanted to take out in the first place.
3. The applicant provides a DD Form 2656 (Data for Payment of Retired Personnel), dated 25 March 2008; A DD Form 2656-2 (Survivor Benefit Plan Termination Request), dated 8 June 2008; a letter from the Defense Finance and Accounting Service (DFAS), Retired and Annuity Pay, dated 12 July 2008; and a notarized Spouse SBP Election Concurrence Statement, dated 22 May 2009.
CONSIDERATION OF EVIDENCE:
1. Headquarters, United States Army Garrison, Fort Carson, Orders 079-0004, dated 19 March 2008, show that the applicant was being released from active duty by reason of physical disability, effective 27 March 2008, and placed on the Temporary Disability Retired List (TDRL), effective 28 March 2008.
2. The applicant's DD Form 2656 shows she is married. Section IX (SBP Election) shows she elected not to participate in the SBP. Section XI shows that the spouse concurrence signature section is blank.
3. A U.S. Postal Service Form 3811 (Domestic Return Receipt), dated 2 April 2008, shows the applicant's spouse acknowledged receipt of certified mail [SBP concurrence documents] at his home address on the above date.
4. A notarized Spouse SBP Election Concurrence Statement, dated 22 May 2009, shows that the applicant's spouse concurred with her election not to participate in SBP.
5. 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. An election must be made before the effective date of retirement, or coverage automatically defaults to spouse coverage (if applicable).
6. 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. Evidence of record shows that the applicant elected not to participate in spousal SBP coverage on 25 March 2008. She retired on 27 March 2008. Evidence of record shows that the applicant's spouse was not with her and he did not receive the concurrence to her declination of SBP coverage until 2 April 2008. This made the applicant's DD Form 2656 invalid and she was automatically enrolled in the SBP for spouse coverage.
2. The applicant had only 8 days to out-process before retirement. Her spouse did not receive the SBP election concurrence statement until 2 April 2008. There was not enough time for the spouse to notarize the SBP concurrence statement and have it back to the RSO in order for it to be processed at DFAS in a timely manner.
3. It would, therefore, be just and equitable to show that the applicant elected not to participate in the SBP on 25 March 2008 with her spouses concurrence on
26 March 2008, and to correct her applicable records to show her DD Form 2656 was accepted and processed by the appropriate office in a timely manner. Further, all SBP premium payments collected from the applicants retired pay should be refunded.
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 she completed the DD Form 2656 on 25 March 2008 and elected not to participate in the SBP;
b. accepting the notarized spouse SBP concurrence statement showing he concurred with her election effective 26 March 2008 and showing it was processed by the appropriate office in a timely manner;
c. cancelling her participation in the SBP program; and
d. refunding all SBP premium payments collected from her 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) AR20090002692
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ABCMR Record of Proceedings (cont) AR20090002692
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