IN THE CASE OF:
BOARD DATE: 5 November 2009
DOCKET NUMBER: AR20090008270
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 request that her military records be corrected to show she elected not to participate in the Survivor Benefit Plan (SBP) and that she be reimbursed for all of the deductions from her retired pay.
2. The applicant states that she was counseled in error on how to complete the DD Form 2656 (Data for Payment of Retired Personnel). She contends that her spouse agrees with her request to terminate SBP.
3. The applicant provides a DD Form 2656-2 (SBP Termination Request), dated
1 May 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 AR20080011481 on 7 April 2009. In these proceedings, the Board inferred that the applicant's request would be reconsidered if she provided a current spousal concurrence.
2. The applicant provides a DD Form 2656-2, dated 1 May 2009, which shows she requested to discontinue participation in the SBP and her spouse concurred with this election. This form is new evidence which will be considered by the Board.
3. The applicant was born on 18 April 1948 and she accepted an appointment as a commissioned officer in the United States Army Reserve (USAR) in the rank of second lieutenant on 9 January 1986. She was promoted to the rank of major effective 31 August 1999.
4. On 9 February 2006, the applicant received her Notification of Eligibility for Retired Pay at Age 60.
5. The applicant's records show that on 13 March 2006, she submitted a DD Form 2656-5 (Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate) in which she declined to make an SBP election until she reached age 60. The DD Form 2656-5 was signed by her spouse.
6. A DD Form 2656, dated 30 June 2006, shows the applicant made no SBP beneficiary election (including no election to not participate); however, it also shows that she elected SBP coverage based on her full gross pay without supplemental SBP. The DD Form 2656 was also signed by her spouse.
7. The applicant was honorably discharged from the USAR and transferred to the Retired List on 18 April 2008 on her 60th birthday.
8. In September 2008, the Defense Finance and Accounting Service (DFAS) informed a Board analyst that the applicant's SBP began on 18 April 2008 and the deduction for her SBP premium began on 1 May 2008 because she elected to defer RCSBP and she did not make an SBP election on the DD Form 2656 at age 60.
9. 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 or retirement or coverage defaults to spouse coverage, full base amount (if applicable).
10. Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for Reserve retirement but were not yet age 60, to provide an annuity for their survivors should they die before reaching age 60. Three options are available: (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the members 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.
11. 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.
DISCUSSION AND CONCLUSIONS:
1. Although the applicant's spouse concurred with her SBP election on the DD Form 2656, this form reflects that the applicant made no SBP beneficiary election and the form also indicated that she elected SBP coverage based on her full gross pay without supplemental SBP. Since this form was ambiguous, DFAS properly defaulted her election to full spouse coverage.
2. Since it appears the applicant's spouse has been in agreement with the applicant's decision to decline SBP all along based on the presence of his signature on forms he need not have signed at all except for the fact that his wife was declining SBP, and he has reaffirmed his concurrence. Therefore, it would be equitable to correct the applicants records to show her DD Form 2656 indicates she elected not to participate in the SBP on 30 June 2006.
3. It would also be appropriate to reimburse the applicant all premiums that have been collected as a result of this correction.
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 amendment of the ABCMRs decision in Docket Number AR20080011481, dated 7 April 2009. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
a. showing the applicant elected not to participate in the SBP on 30 June 2006 and her spouse concurred with her election on the DD Form 2656; and
b. as a result of this correction, reimbursing the applicant all SBP premiums that have been collected.
_______ _ 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) AR20090008270
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20090008270
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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