IN THE CASE OF:	

		BOARD DATE:	  28 January 2010

		DOCKET NUMBER:  AR20090006375 


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 reconsideration of an earlier appeal to correct his records to show he declined to participate in the Survivor Benefit Plan (SBP) and that he be refunded the premiums collected since his retirement.

2.  The applicant states, in effect, he was involved in a motorcycle accident that left him hospitalized due to a brain injury and he received a Medical Evaluation Board, retiring him from the military.  During his retirement processing, he declined to participate in the SBP.  The applicant's spouse was mailed the documents to make her SBP election.  At that time his spouse became hostile towards him, and obtained military and civilian protective orders against him under false pretenses.  During this period, he was not able to communicate with his spouse.  

3.  The applicant states his spouse did not concur with his SBP election until the day he conceded permanent custody of their children.  The applicant states that his spouse had plenty of time to review the content of the SBP election.  She had two attorneys at the time she signed it and bargained for the result of the election.

4.  The applicant provides:

   a.  a Neuropsychological Evaluation from the Rehabilitation Hospital of York, York, Pennsylvania, dated 6 September 2007;
   
   b.  a DD Form 2873 (Military Protective Order), dated 8 September 2007;
   c.  a memorandum from the U.S. Army Garrison, Aberdeen Proving Grounds (APG), Retirement Services Office (RSO), dated 13 December 2007, that was written to the applicant's spouse concerning the applicant's SBP election; 
   
   d.  an Agreement and Custody Stipulation from the Court of Common Pleas of York County, Pennsylvania Family Law Division, dated 19 February 2008; and 
   
   e.  an email from the RSO, APG to the applicant, dated 30 March 2009.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080012354 on 9 October 2008.

2.  The applicant’s neuropsychological evaluation, DA Form 2873, Agreement of Custody Stipulation, and RSO Election Memorandum are considered new evidence and require reconsideration by the Board.

3.  On 10 September 2004, the applicant was appointed as a Reserve commissioned officer of the Army, in the rank of first lieutenant/pay grade O-2, in the Judge Advocate's General Corps.  He was promoted to the rank of captain/ pay grade O-3 on 1 February 2005.

4.  A DD Form 2873, dated 18 September 2007, shows the applicant's commander ordered him to have no contact with his spouse or children without approval from the commander or the Deputy Staff Judge Advocate (DSJA), due to the safety of the applicant's spouse and children.

5.  The applicant's DD Form 2656 (Data for Payment of Retired Personnel), dated 13 December 2007, shows he is married.  Section IX (Survivor Benefit Plan Election) shows he elected not to participate in SBP coverage.  Section XI (SBP Spouse Concurrence) contains no signature.

6.  A memorandum from U.S. Army Garrison, APG, RSO, dated 13 December 2007, shows the applicant's spouse was mailed SBP concurrence documents.  The memorandum stated that the spouse had to make an SBP election prior to the applicant's retirement date 19 December 2007.



7.  On 19 December 2007, the applicant retired and was placed on the temporary disability retired list (TDRL) on 20 December 2007.

8.  A Spouse SBP Election Concurrence Statement, dated 19 February 2008, shows the applicant's spouse concurred with his election not to participate in SBP.  The signature of the notarizing official bears no resemblance to known signature samples of the official involved and the document bears no official notary seal.

9.  The York County, Pennsylvania Agreement and Custody Stipulation, dated
19 February 2008, shows the applicant and his spouse entered into a joint stipulation for custody of their children in York County, Pennsylvania.

10.  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).

11.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a one-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.

12.  Army Regulation 600-8-7 (Retirement Service Program) prescribes policies governing military personnel retirement services, the SBP, and the Chief of Staff, Army, Retiree Council.  Chapter 3 (Pre-Retirement Service Policy), paragraph
3-2 (Survivor Benefit Plan counseling policy), in pertinent part, provides that between the time the retirement application is submitted, but no less than
60 days before retirement, every Soldier and spouse must be counseled on the SBP, to include categories available under Title 10, United States Code, section 1448(a), and the effects of such elections in accordance with Title 10, United States Code, section 1455(b)(1).  This document also provides that whenever possible, SBP counseling of spouses will be conducted in person.  If the spouse is unavailable for counseling based on incapacitation or geographic location, prescribed SBP information will be mailed to the spouse using certified mail, restricted delivery, along with notification of the Soldier’s SBP election, a cost-benefit estimate, and a request for spouse concurrence with the election, if applicable.  This document further provides that by law, married Soldiers who fail to provide written spouse concurrence or an approved waiver of same before the date of retirement will be enrolled in full spouse SBP, or if any type of child/ children coverage is elected, full spouse and child/children SBP.  Married 
Soldiers who cannot obtain spouse concurrence because their spouse’s whereabouts are unknown, or because of exceptional circumstances, may request a waiver of the spouse concurrence requirement from the Chief, Army RSO.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant elected not to participate in spousal SBP coverage on 13 December 2007.  He retired on 19 December 2007.  However, the applicant's spouse was not with him and she did not concur with his declination of SBP coverage.  This made the applicant's DD Form 2656 invalid and he was automatically enrolled in the SBP for spouse coverage.

2.  The applicant provided evidence that shows he was not allowed contact with his spouse prior to his retirement and that she did not concur with the SBP election prior to his retirement.  However, if he had any questions, the applicant, a commissioned judge advocate officer, had a responsibility to request a waiver of the spouse concurrence requirement from the Chief, Army RSO prior to his retirement.  The SBP statue specifically states that an election must be made before the effective date of retirement.  The SBP statute further states that retirees have a 1 year period beginning on the second anniversary of the date on which their retired pay started to withdraw from SBP; however, again, the spouse's concurrence is required.

3.  The Spouse SBP Election Concurrence Statement, dated 19 February 2008, that the applicant provided that shows his spouse concurred with his election not to participate in SBP contains no official seal and it is not sufficient for granting the requested relief.

4.  In view of the foregoing, there is no basis for granting the applicant's request.  If, SBP coverage was not suspended under the terms of the applicant's divorce, he may elect to withdraw from the SBP with his spouse's concurrence during the 1 year period beginning 20 December 2009 and ending 19 December 2010.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080012354, dated 9 October 2008.




      _______ _   _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)                                         AR20090006375



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ABCMR Record of Proceedings (cont)                                         AR20090006375



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