IN THE CASE OF:	  

		BOARD DATE:	  15 October 2009

		DOCKET NUMBER:  AR20090005224 


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 that her records be corrected to reflect that she and her spouse elected not to participate in the Survivor Benefit Plan (SBP) and that she be reimbursed for all back SBP payments she has made since her retirement.

2.  The applicant states, in effect, that she specifically opted not to participate in the SBP and yet was automatically enrolled with full spouse coverage because her DD Form 2656 (Data for Payment of Retired Pay) did not have her spouse's signature notarized.  However, the RSO (Retirement Services Officer) instructed her to have the form notarized and she did so at Andrews Air Force Base, MD and sent it to the Defense Finance and Accounting Service (DFAS) in November 2008.  Unfortunately, DFAS claims it did not receive the document and she was enrolled for full coverage.  She goes on to state that in February 2009, when she received her first paycheck, she saw that SBP was being deducted and again sent in a notarized DD Form 2656; however, DFAS refused to process it.  She continues by stating that neither she nor her husband, who is a U.S. Air Force colonel, ever wanted to participate in the SBP.

3.  The applicant provides a copy of a letter to DFAS and a notarized DD Form 2656, dated 5 March 2009, indicating that she and her spouse declined SBP participation.  The form was notarized in Arlington, VA.




CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a U.S. Army second lieutenant on 9 May 1987 and entered active duty on 31 October 1987.  She completed her training as an aviation officer (rotary wing pilot), remained on active duty through a variety of assignments including duty in Southwest Asia, and she was promoted to the rank of lieutenant colonel (LTC) on 2 October 2004.

2.  Her records show that she married her spouse, who was an Air Force commissioned officer, 5+ years her senior, on 1 September 1989.  He is currently serving on active duty as a colonel.

3.  On 1 October 2008, the applicant completed a DD Form 2656 indicating that she elected not to participate in the SBP.  The RSO witnessed the applicant's signature; however, the applicant's spouse did not sign the form.  On 15 October 2008, a copy of that form was faxed from the DFAS office at Fort Belvoir, VA to the DFAS - Kentucky Retirements and New Accounts Section.  

4.  On 31 December 2008, the applicant was honorably retired and she was transferred to the U.S. Army Reserve (USAR) Control Group (Retired).  She was placed on the Retired List in the rank of LTC, effective 1 January 2009.  She had served 21 years and 3 months of total active service.

5.  Title 10, U.S. Code, section 1448, provides, in pertinent part, that effective
1 March 1986, a married member is enrolled in the SBP with spouse coverage based on full retired pay at the time of retirement unless that spouse has concurred in writing to another election requested by the member pursuant to Department of Defense Financial Management Regulation (DODFMR), Volume 7B, chapter 43.  When the spouse’s concurrence is required, the signature indicating concurrence must be corroborated by one or more witnesses.  Section 1454 states, in pertinent part, that the Secretary of the Military Department concerned (or designee) may correct any election or any change or revocation of an election when the Secretary considers it necessary to correct an administrative error.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant has not provided and the records do not contain a copy of the notarized DD Form 2656 she contends that she had notarized at Andrews Air Force Base in November 2008, there appears to be no reason to doubt her sincerity in this matter.


2.  The fact that the RSO witnessed her signature and accepted the form without her husband's signature is indicative in itself that the form was not properly processed, as evidenced by the fact that the RSO released the form to DFAS personnel approximately 2 weeks after she signed it in October 2008.

3.  Accordingly, it is reasonable to believe that the applicant was notified that she needed to have her husband notarize the form and did so in November 2008 as she claims.

4.  It is also reasonable to believe that the applicant and her husband believed that they had declined SBP and in March 2009, after having received her first retired pay check, again took action to have the DD Form 2656 notarized and forwarded to the DFAS.

5.  While it cannot be determined with any degree of certainty why her DD Form 2656 dated in November 2008 never arrived or was never processed by DFAS, there is no doubt that the applicant and her spouse wanted to decline participation in the SBP.

6.  Therefore, since the provision of the law that requires a spouse's concurrence when declining SBP participation was to protect the spouse's interest and since the spouse in this case concurs with the applicant, it is reasonable to presume, in the absence of the November 2008 DD Form 2656 in question, that it was their intent in November 2008 to decline participation in the SBP.

7.  Accordingly, it would be in the interest of justice at this time to correct the applicant's records to show that on 1 November 2008, the applicant completed a DD Form 2656 and declined, with her spouse's concurrence, to enroll in the SBP.

8.  Additionally, the applicant is entitled, as a result of this change, to be reimbursed all SBP deductions taken from her retired pay. 

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 that on 1 October 2008 the applicant elected not to participate in the SBP;

   b.  showing that her spouse concurred in writing with the election she made on 1 November 2008 not to participate in the SBP;

	c.  that DFAS timely received and processed her DA Form 2656 electing not to participate in the SBP; and

	d.  paying her any SBP deductions already taken from her retired military pay.



      _________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)                                         AR20090005224



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ABCMR Record of Proceedings (cont)                                         AR20090005224



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