IN THE CASE OF:
BOARD DATE: 1 December 2009
DOCKET NUMBER: AR20090008131
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 military records to show that he and his spouse elected not to participate in the Survivor Benefit Plan (SBP).
2. The applicant states, in effect, that he and his spouse declined enrollment in the SBP upon retirement. The applicant further states, in effect, that the Defense Accounting and Finance Service (DFAS) rejected his DD Form 2656 (Data for Payment of Retired Personnel) because of a discrepancy about the date it was signed but that was straightened out and he was told the payments would stop the following month, but they did not. He continues to state that he was also told that the Fort Gordon (FG) Form 6739 (Spousal SBP Concurrence Statement) was not sealed by a notary public and since it is now past his retirement date he could not resubmit the form. He concludes by stating that he and his spouse do not wish to be enrolled in the SBP.
3. The applicant provides the DD Form 2656, the FG Form 6739, and his spouses notarized statement of concurrence.
CONSIDERATION OF EVIDENCE:
1. The applicant retired from the United States Army on 31 August 2008, after serving for 20 years and 8 days.
2. On 12 June 2008, the applicant signed and submitted a DD Form 2656 indicating that he did not elect SBP coverage for his spouse.
3. Item 32 (Spouse) a. (Signature) of the DD Form 2656 does not contain the signature of the applicant's spouse indicating that she concurred with the SBP election made by her husband. This concurrence was required because the applicant opted for SBP coverage at less than the full base amount. Item 33 (Notary Witness) does not contain a signature. This is required because the spouse must concur with the applicant's election of less than full SBP coverage.
4. On 26 July 2008, the applicant's spouse provided a FG Form 6739 indicating that she elected to not participate in the SBP at the time of the applicant's retirement and still declines to participate in the program. The statement was signed by a witness but it is unknown if the witness was an SBP counselor or a notary public.
5. On 29 September 2009, the applicant's spouse provided a notarized statement which indicated that she declined to participate in the SBP at the time of the applicant's retirement and still declines to participate in the program.
6. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.
7. Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouses written concurrence for a retiring members election that provides less than the maximum spouse coverage.
8. Department of Defense Financial Management Regulation, volume 7B, chapter 43, provides guidance on SBP elections. This chapter states, in pertinent part, that effective 1 March 1986, a married member is enrolled with spouse coverage on full retired pay at the time of retirement unless that spouse has concurred in writing to another election requested by the member. When the spouses concurrence is required, the signature indicating concurrence must be corroborated by one or more witnesses. This chapter also 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. The applicant's contention that his election under the SBP should be changed from full coverage to no survivor coverage was carefully considered and found to have merit.
2. The evidence of record clearly shows that the applicant elected not to participate in the SBP. The evidence of record shows that his spouse concurred with his election; however, although she completed a FG Form 6739 and her concurrence was witnessed it appears the concurrence form was not notarized. The applicant's spouse has since submitted a notarized concurrence. Therefore, he is entitled to correction of his military records to show that he elected not to participate in the SBP, that his spouse concurred with his election on 12 June 2008, and that he is entitled to reimbursement of any SBP deductions from his retired military 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 showing that he elected not to participate in the SBP, that this spouse concurred with his election on 12 June 2008, and that DFAS reimburse the applicant any SBP deductions already deducted from his retired 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) AR20090008131
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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