IN THE CASE OF:	

		BOARD DATE:	24 September 2009  

		DOCKET NUMBER:  AR20090007119 


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 his records to show he elected not to participate in the Survivor Benefit Plan (SBP).

2.  The applicant states that during outprocessing, he and his spouse were both present and that they elected not to participate in the SBP.  However, instead of having his spouse sign the DD Form 2656 (Data for Payment of Retired Pay) at the time of his election, his spouse was instructed to check the wrong block on a separate spouse concurrence statement and take that statement to a Judge Advocate for signature and authentication.

3.  The applicant provides a copy of a notarized statement, dated 4 February 2009, from his spouse; a copy of a spouse concurrence/non-concurrence statement, dated 2 May 2008; a copy of his DD Form 2656, dated 2 May 2008; and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 18 June 2008, in support of his request.

4.  On 8 September 2009, the applicant submitted a copy of a notarized statement, dated 1 September 2009, indicating that his spouse concurs with his decision not to participate in the SBP.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he was married to his spouse Marta on 15 September 1995 and having had prior service, his records also show he reenlisted in the Regular Army on 4 May 2007.  He was trained in and held military occupational specialty 25B (Information System Operator/Analyst).

2.  On 11 March 2008, the applicant’s records were considered by a medical evaluation board that recommended his referral to a physical evaluation board (PEB).  The PEB found his medical condition prevented him from satisfactorily performing the duties of his grade and specialty and recommended his placement on the Permanent Disability Retired List.

3.  On 2 May 2008, and in anticipation of his upcoming medical retirement, the applicant completed a DD Form 2656.  He placed an "X" in item 26g (Survivor Benefit Plan Election) of Section IX, indicating that he had eligible dependents under the plan; however, he 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 30b (Spouse-Date Signed) MUST NOT be before the date of the member's signature in item 32b (Member-Date Signed))."  Item 30a (Spouse Signature) does not contain the spouse’s signature. 

5.  On 2 May 2008, the applicant’s spouse Marta completed a separate spouse concurrence/non-concurrence statement and indicated that she did not concur with the election made by her husband (the applicant).  She authenticated this statement by placing her signature and date in the appropriate place and had the form notarized by a notary public. 

6.  The applicant was retired on 18 June 2008 and placed on the Retired List on 19 June 2008 in his retired grade of sergeant.  The DD Form 214 he was issued shows he completed 14 years and 8 days of creditable active service

7.  The applicant submitted a copy of a statement, dated 4 February 2009, in which his spouse stated that she had mistakenly non-concurred with her husband's election and that she now concurs with his election not to participate in the SBP.  However, this statement did not have an original signature or notary public seal.

8.  On 27 August 2009, the case analyst of record contacted the applicant and requested an updated signed, dated, and notarized (with a raised seal) statement from the applicant's spouse concurring with his decision.  The applicant indicated it would be mailed right away.

9.  On 1 September 2009, the case analyst of record contacted the applicant again and requested the same.  The applicant indicated it would be mailed that day.

10.  On 8 September 2009, the applicant submitted a notarized statement signed by his spouse on 1 September 2009 that shows she mistakenly checked the non-concur block on the spouse concurrence/non-concurrence statement and that she concurs with her husband’s (the applicant’s) election not to participate in the SBP.

11.  Public Law 92-425, the SBP, enacted on 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 on 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 on 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 his records should be corrected to show he elected not to participate in the SBP.

2.  The evidence of record shows the applicant submitted a DD Form 2656 wherein he elected, in the presence of an RSO, not to participate in the SBP.  By law, his spouse was required to authenticate this form on or after the date he made this election but prior to the date of his retirement.  His spouse did not sign the form, but signed a separate spouse concurrence/non-concurrence statement indicating that she did not concur with his election.  Accordingly, the applicant was enrolled in the SBP program with spouse coverage.
3.  It appears that the spouse changed her mind at a later date and decided to concur with her spouse's election not to participate in the SBP.  She signed and had notarized a statement on 4 February 2009 indicating that she had mistakenly checked the non-concur block on the spouse concurrence/non-concurrence statement and that she concurs with her husband’s election not to participate in the SBP.  However, this statement was signed and notarized months after the effective date of retirement.

4.  The applicant’s spouse provided another current signed and notarized statement to further confirm that she concurs with her husband’s election not to participate in the SBP.

5.  It is clear that the applicant's intent all along was not to participate in the SBP. It is unclear why his spouse was required to sign a separate statement.  Additionally, although she did not initially concur with his decision, she has since indicated that her non-concurrence was in error.

6.  In the interest of equity, the applicant's records should be corrected to show he elected not to participate in the SBP with his spouse's concurrence.

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 5 May 2008 electing not to participate in the SBP, that his spouse concurred with his decision on 5 May 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)                                         AR20090007119



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ABCMR Record of Proceedings (cont)                                         AR20090007119



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