IN THE CASE OF:	

		BOARD DATE:	30 July 2009  

		DOCKET NUMBER:  AR20090004189 


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 her records to show she elected not to participate in the Survivor Benefit Plan (SBP).

2.  The applicant states the error occurred because her spouse did not date the DD Form 2656 (Data for Payment of Retired Personnel) on 15 July 2008.

3.  The applicant provides a copy of her DD Form 2656, dated 15 July 2008; a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 January 2009; and a copy of her Retiree Account Statements, dated 25 and 27 February 2009, in support of her request. 

4.  On 13 July 2009, the applicant submitted a copy of her marriage certificate and a notarized statement, dated 9 July 2009, indicating that her spouse concurs with her decision regarding her SBP election.

CONSIDERATION OF EVIDENCE:

1.  With prior service, the applicant enlisted in the Regular Army (RA) on           12 January 1993.  She was trained in and held military occupational specialty 42A (Human Resources Specialist).  She executed a series of extensions and/or reenlistments in the RA throughout her military career.

2.  The applicant’s records also show she married her spouse, A------, on 2 May 2003, in Richland County, SC.

3.  On 15 July 2008, and in anticipation of her upcoming retirement, the applicant completed a DD Form 2656.  She placed an "X" in item 26g (Survivor Benefit Plan Election) of Section IX, indicating that she had eligible dependents under the plan; however, she elected not to participate in the SBP.  A Retirement Services Officer (RSO)/SBP counselor also authenticated this form by placing her signature and date in the appropriate blocks.

4.  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))."  Item 32b (Date Signed) does not contain the date the applicant’s spouse signed this form.

5.  The applicant was honorably released from active duty on 31 January 2009 and placed on the retired list on 1 February 2009 in her retired rank/grade of staff sergeant/E-6.  The DD Form 214 she was issued shows she completed 20 years and 20 days of creditable active service

6.  The applicant's Retiree Account Statements, dated 25 and 27 February 2009, show an SBP deduction of $72.53 for spouse coverage and that this amount would change to $101.68 effective 1 April 2009.  Additionally, the SBP Coverage block of both Statements show she has spouse only coverage. 

7.  On 13 July 2009, the applicant submitted a notarized statement, signed by her spouse, on 9 July 2009, concurring with her election not to participate in the SBP.

8.  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.

9.  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.

10.  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 her records should be corrected to show she elected not to participate in the SBP.

2.  The evidence of record shows the applicant submitted a DD Form 2656 wherein she elected, in the presence of an RSO counselor, not to participate in the SBP.  However, by law, her spouse was required to authenticate this form on or after the date she made this election but prior to the date of retirement.  Her spouse signed the form but did not date it.  When the form arrived at the Defense Finance and Accounting Service it was unclear when the applicant's spouse concurred with her election.  Therefore, her SBP coverage defaulted to spouse coverage.  Shortly after she retired, she discovered the error on her Retiree Account Statement. 

3.  It is clear that the applicant's intent was not to participate in the SBP.   Although her spouse failed to date the DD Form 2656 before her retirement, it appears the RSO counselor also failed to inform her or her spouse that the SBP concurrence statement was required to be signed and dated before the effective date of her retirement.

4.  In the interest of equity, the applicant's records should be corrected to show she elected not to participate in the SBP.  Furthermore, since the spouse has a vested interest in the SBP benefit, the requirement for him to concur with the applicant's election not to participate in the SBP is satisfied with the submission of the notarized statement, dated 13 July 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 15 July 2008, electing not to participate in the SBP and that her spouse concurred with her decision, on 15 July 2008, and that the Defense Finance and Accounting Service 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 paid 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)                                         AR20090004189



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ABCMR Record of Proceedings (cont)                                         AR20090004189



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