BOARD DATE:	  25 September 2009

		DOCKET NUMBER:  AR20090007077 


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 termination of her Survivor Benefit Plan (SBP) enrollment and reimbursement of all the money she paid into the SBP.

2.  The applicant states that she was discharged and was never given an option to decline enrollment in the SBP as her spouse was deployed at the time she made her election.  She adds that he is also currently deployed again and will not be able to sign.

3.  The applicant provides a copy of Orders 061-0154, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, dated 2 March 2007; a copy of a General Durable Financial Power of Attorney, dated 1 December 2008; a copy of a DD Form 2656-2 (SBP Termination Request); a copy of her husband’s deployment orders; and a copy of her husband's DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 10 October 2008; in support of her request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show she enlisted in the Missouri Army National Guard (MOARNG) on 2 August 2001 and was trained in and held military occupational specialty 88A (Motor Transport Operator).


2.  On 9 August 2004, the applicant was ordered to active duty as a member of her ARNG unit in support of Operation Iraqi Freedom and subsequently served in Iraq from 13 October 2004 to 11 October 2005. 

3.  The applicant’s records show she married her spouse, Cxxx, in Lacrosse WI, on 22 November 2005. 

4.  On 7 July 2006, the applicant was involved in an auto accident, causing her an injury that warranted her entry into the Physical Disability Evaluation System (PDES).  She subsequently underwent a medical evaluation board that referred her to a physical evaluation board (PEB).  The PEB recommended placing her on the temporary disability retirement list (TDRL), effective 5 March 2007.  

5.  On 5 March 2007, the applicant completed a DD Form 2656 (Data for Payment of Retired Personnel).  She elected SBP coverage for spouse only based on the full amount and authenticated this form by placing her signature and date in the appropriate blocks.  A Retirement Services Officer (RSO)/SBP counselor also authenticated this form by placing her signature and date in the appropriate blocks.

6.  The applicant was honorably retired on 5 March 2007 and placed on the temporary disability retired list on 6 March 2007 in her retired rank/grade of SGT/E-5.  The DD Form 214 she was issued shows she completed 2 years, 6 months, and 27 days of creditable active service.

7.  The applicant provided a copy of her husband's DD Form 214 that shows he was ordered to active duty on 1 October 2007 and was released from active duty on 10 October 2008.  

8.  On 1 December 2008, it appears the applicant attempted to discontinue participation in the SBP.  She completed a DD Form 2656-2 and her spouse concurred with her decision.  The form was notarized on 1 December 2008. Although the typewritten date on the form shows "20081001," it was executed on 1 December 2008.  The applicant struck through the typewritten date and inserted the date "2008/12/01" instead.  The notary public who witnessed the applicant husband's signature also indicated the document was signed by the applicant's husband in his presence on 1 December 2008.

9.  The applicant submitted copies of her spouse’s deployment/mobilization orders that show he was ordered to active duty as a member of his Reserve unit for a period of 400 days in support of Operation Iraqi Freedom, effective on or about 15 February 2009 and he is currently serving in Iraq. 

10.  The case analyst of record contacted the applicant by email on 25 August 2009 to request a current signed, dated, and notarized statement from her spouse.  The analyst also contacted the applicant on 26 August 2009 at the phone number listed on her application but she did not answer.

11.  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.

12.  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.

13.  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 SBP enrollment should be terminated and she should be reimbursed all the money she paid into 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, to participate in the SBP, spouse coverage, based on the full amount.  She indicates that her intent was to elect not to participate in the SBP, which would have required her spouse to authenticate this form; however, her spouse was deployed at the time.

3.  The applicant's husband was released from active duty after his first deployment on 10 October 2008.  On 1 December 2008, shortly before her husband deployed again, the applicant and her husband appeared before a notary public and executed the SBP termination request (DD Form 2656-6).  Although the typewritten date on the form shows "20081001," it was executed on 1 December 2008.  The applicant struck through the typewritten date and inserted the date "2008/12/01" instead.  The notary public who witnessed the 

applicant husband's signature also indicated the document was signed by the applicant's husband in his presence on 1 December 2008.  The applicant's husband should not be penalized for not making an ink and pen correction to the typewritten date.  Additionally, the reading on the SBP termination request is further confirmed by the presence of a power of attorney, also executed on very same date in front of the very same notary public, making the applicant her husband's agent.

4.  There is no requirement that the DD Form 2656-2 be signed at any particular time.  The only requirement is that it is submitted during the one-year termination window.  It is sufficient that the form be properly executed and this form is.  Additionally, since the applicant has a power of attorney from her husband, the applicant is vested with the authority to concur with the termination of the SBP on behalf of her husband.  

5.  In view of the foregoing, the applicant is entitled to relief, but only retroactive to 1 April 2009, the second anniversary of the day on which her retired pay started.  No premiums paid into the program prior to that date will be refunded.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__x____  ____x___  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial 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, with her spouse's concurrence, requested termination of her participation in the SBP to be effective 1 April 2009 and that her request was received and processed in a timely manner to be effective on that date; and

	b.  reimbursing to the applicant any premiums already paid by her due as a result of this correction.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to reimbursement of any premiums other than those due as a result of the above 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)                                         AR20090007077



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ABCMR Record of Proceedings (cont)                                         AR20090007077



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