IN THE CASE OF:	  

		BOARD DATE:	  18 August 2009

		DOCKET NUMBER:  AR20090004295 


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 his records be corrected to show he elected spouse-only Survivor Benefit Plan (SBP) coverage instead of children coverage.

2.  The applicant states that the initial form he submitted was for children-only coverage, but it was incorrectly done and improperly documented.  Once the error was identified, he spoke to officials at the Defense Finance and Accounting Service (DFAS) telephonically and requested the spouse coverage option.  Changes were made, as shown on his attached Retiree Account Statements; however, his coverage reverted to children coverage.

3.  The applicant provides copies of his Retiree Account Statements, dated 8 October 2008, 4 and 7 November 2008, 2 and 8 December 2008, and 2 February 2009 in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he enlisted in the Regular Army on 2 March 1988 and held military occupational specialty 79R (Recruiter).  He was married to his spouse Cindy on 6 June 1992.  His records also show he executed several reenlistments in the Regular Army, served in various staff and leadership positions, and was promoted through the ranks to sergeant first class (SFC).

2.  On 29 July 2008, in anticipation of his upcoming retirement, the applicant completed a DD Form 2656 (Data for Payment of Retired Personnel).  He indicated that he was married, had four dependent children, and listed them as Dexter, born on 24 May 1994; Isaac, born on 21 July 1997; Isiah, born on 21 July 1997; and Olivia, born on 7 November 1992.  He further elected children-only coverage, full amount, under the SBP and he and a witness, an SBP counselor, authenticated this form by placing their signatures in the appropriate place.

3.  On 24 September 2008, the applicant’s spouse Cindy executed a Spouse SBP Election Concurrence Statement indicating that she concurred with her spouse’s children-only SBP coverage.

4.  The applicant’s records further show he was honorably released from active duty on 30 September 2008 and placed on the Retired List in his retired grade of SFC on 1 October 2008.  He was credited with over 20 years of faithful active service.

5.  The applicant submitted several Retiree and Account Statements as follows:

	a.  statement effective date 8 October 2008 shows children SBP coverage at a cost of $3.45;

	b.  statement effective date 4 November 2008 shows spouse and children SBP coverage at a cost of $120.64;

	c.  statement effective date 7 November 2008 shows spouse and children SBP coverage at a cost of $120.64;

	d.  statement effective date 2 December 2008 shows spouse and children SBP coverage at a cost of $120.64;

	e.  statement effective date 8 December 2008 shows a credit of $117.62 (spouse coverage at $120.64 minus child coverage at $3.34 and a tax adjustment); and

	f.  statement effective date 2 February 2009 shows children SBP coverage at a cost of $3.34.

6.  An electronic mail message, dated 27 July 2009, from the Army SBP Program Manager, Army G-1 Retirement Services Branch, Alexandria, VA, indicates that the applicant elected child-only SBP coverage and his spouse concurred on a separate statement.

7.  Public Law 92-425 enacted 21 September 1972 established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election, once made, was irrevocable except in certain circumstances.  Since its creation, it has been subjected to a number of substantial legislative changes.

8.  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 provided less than maximum spouse coverage.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that prior to his retirement, the applicant made an SBP election for children-only coverage.  As was required by law, his wife Cindy concurred with his election and authenticated a separate Spouse SBP Election Concurrence Statement by placing her signature in the appropriate place indicating her concurrence with his election.

2.  When the applicant chose the SBP election of children coverage, he irrevocably forfeited future spouse coverage except during a Congressionally-approved open enrollment period.  There has not been an Open Season since the applicant’s retirement on 1 September 2008.   Enrollment of the spouse as beneficiary would not be possible until an Open Season is announced.  There is neither error nor injustice.

3.  It is unclear why 2 months into the applicant’s retirement his SBP coverage changed from children coverage to spouse coverage.  Nevertheless, once the appropriate forms were received at DFAS, his coverage reverted to children coverage as it should be and he was reimbursed any premium overpayment.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant him the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X__  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________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)                                         AR20090004295



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ABCMR Record of Proceedings (cont)                                         AR20090004295



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