IN THE CASE OF:	

		BOARD DATE:	 16 March 2010 

		DOCKET NUMBER:  AR20090011042 


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 he checked the wrong box on his election form.

3.  The applicant provides a copy of a 27 August 2007 DD Form 2656 (Data for Payment of Retired Personnel).

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 8 May 1949.  He served on active duty in the U.S. Marine Corps (USMC) from 24 September 1968 through 12 September 1972 and in the USMC Reserve (USMCR) from 13 September 1972 through 12 September 1974.  He had a break in service from 13 September 1974 through 28 July 1978.

2.  The applicant enlisted in the Army National Guard (ARNG) on 29 July 1978 and served in the ARNG until 15 July 1987 when he transferred to the USAR.  The applicant subsequently transferred to the Retired Reserve on 2 October 1996.

3.  On 20 August 1998, the U. S. Army Reserve Personnel Command, St. Louis, MO, sent the applicant a memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60 (commonly known as 20-year letter).  This document was not added to his interactive Personnel Electronic Records Management System (iPERMS) record until 7 April 2008.
4.  The iPERMS record does not contain copies of his retirement orders, any SBP election forms, or any other documentation dated after the 20-year letter issue date.

5.  The DD Form 2656 provided by the applicant is dated 27 August 2007.  It has no marks for blocks 26a through 26g (Beneficiary Categories).  In the line for block 26g (I decline to participate) the applicant marked that he had eligible dependents.  No level of coverage is marked in the column along the side of blocks 27a through 27d and block 30 (Spousal Concurrence) is signed and dated by the applicant's wife. 

6.  The Defense Accounting and Finance Service (DFAS) was contacted to determine what level of withholding was being made from the applicant's retired pay and what documentation was utilized to justify the withholding.  The staff at DFAS confirmed that SBP premiums for full spousal coverage were being withheld from the applicant's retired pay.  The DFAS copy of the DD Form 2656 matches the one provided by the applicant.  It was considered incomplete because no entry was marked for blocks 26a through 26g.  The staff advised that this should have generated an incomplete application letter to the applicant but no record of such a letter is available for review.  The DFAS specialist stated that based on the entry at 26g, the lack of any level of participation marked for blocks 27a through 27d, and the completion of the concurrence blocks by the spouse, it would have been reasonable to assume that the applicant did not wish to participate in SBP and that his spouse concurred.  It was opined that the applicant's records should be corrected to show he declined SBP.

7.  The applicant was contacted, via his e-mail address, and requested to obtain and provide to the Board a notarized statement verifying that his spouse concurs with the election to not participate in SBP.  However, no response was received from either the applicant or his spouse.

8.  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 at the time the are notified of their retirement eligibility 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 member’s 60th birthday; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP.  An SBP election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP full spouse coverage (if married).

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he checked the wrong box on his election form.

2.  The applicant did not check the box at the beginning of line 26g, but there is also no level of withholding denoted.  The applicant's spouse appears to have signed the form.

3.  This form was considered to be incomplete by the staff at DFAS and should have generated a follow-up letter by them.  There is no record that this occurred. Without a valid DD Form 2656 on record, full spousal coverage automatically properly kicked-in at the time he started receiving his retired pay.

4.  Without knowing that there was an error or omission on the form the applicant could not correct it before he started receiving retired pay with the mandatory full coverage for a spouse withholding.

5.  While the error on the part of DFAS may have created an injustice, attempts to verify that the applicant's spouse concurred with the decision have met with no response from the applicant or his spouse.

6.  Therefore, since the spousal concurrence to an election not actually made can not be assumed and the applicant has failed to provide a current and knowing spousal concurrence, the mandatory withholding at full spouse coverage is appropriate and should be continued at this time

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X__  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________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)                                         AR20090011042



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ABCMR Record of Proceedings (cont)                                         AR20090011042



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