IN THE CASE OF:
BOARD DATE: 1 December 2009
DOCKET NUMBER: AR20090010262
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 that an SBP payment in the amount of $342.23 was deducted from his first month's retirement check. He also states, in effect, that during his retirement processing he was required to complete the DD Form 2656 (Data for Payment of Retired Personnel) with the exception of Section XII (Spouse Concurrence). He further states, in effect, that the Army Retirement Services explained that his wife had to sign a separate notarized statement concurring with his SBP election. He states, in effect, that this was accomplished during this final out processing and that his wife was not asked to sign the DD Form 2656. He concludes by stating that after contacting the Defense Accounting and Finance Service he was told to apply to the Board for resolution.
3. The applicant provides the DD Form 2656, a Spousal SBP Concurrence Statement, and his spouses notarized statement of concurrence.
CONSIDERATION OF EVIDENCE:
1. The applicant retired from the United States Army on 31 May 2009, after serving for 21 years, 3 months, and 22 days.
2. On 16 January 2009, the applicant signed and submitted a DD Form 2656 indicating that he did not elect SBP coverage for his spouse and children.
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 16 January 2008, the U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Stewart/Hunter Army Airfield, Fort Stewart, GA, Army Retirement Services sent a memorandum to the applicant's spouse explaining the purpose of the SBP. The memorandum also explained the procedures for spouses of Soldiers who at retirement elect less than the full Spouse SBP coverage.
5. The applicant provided a Spouse SBP Election Concurrence Statement indicating that his spouse elected to not participate in the SBP at the time of the his retirement and declined to participate in the program. The statement also indicated that the spouse understood that if she elected to non-concur, did not have her signature witnessed by a notary, or failed to complete and return the statement by 1 June 2009, her spouse would automatically be enrolled in the SBP. The undated statement was signed and witnessed by a notary public.
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 by completing the Spousal SBP Election Concurrence Statement and having it notarized. 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 16 January 2009, 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 his spouse concurred with his election on 16 January 2009, 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) AR20090010262
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
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On 6 February 2008, the applicant's spouse concurred with his SBP election not to participate by providing a signed, notarized Spouse SBP Election Concurrence Statement, dated 6 February 2008. Evidence of record shows that the applicant elected not to participate in spousal SBP coverage on 25 January 2008 and his spouse concurred with his SBP election on 6 February 2008. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected...
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The applicant provides: * DD Form 2656 (Data for Payment of Retired Personnel), dated 2 March 2011 * SBP Spouse Election Concurrence Statement, dated 8 March 2011 * Retiree Account Statement, dated 29 September 2011 * letter of explanation/correction request, dated 14 October 2011 CONSIDERATION OF EVIDENCE: 1. 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 retirement. As a result, the Board recommends that all...
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