IN THE CASE OF:	  

		BOARD DATE:	  6 May 2010

		DOCKET NUMBER:  AR20090014083 


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 her record to show the level of coverage she chose in her Survivor Benefit Plan (SBP) election was "threshold amount." 

2.  The applicant states although she elected "threshold amount" level of SBP coverage on the DD Form 2656 (Data for Payment of Retired Personnel) she completed in conjunction with her 19 July 2009 retirement, because the date her spouse signed the form was prior to the date she signed the form, her SBP level of coverage was established based on her full gross pay.

3.  The applicant provides a statement signed by her and her spouse and a 
DD Form 2656.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record confirms she completed 30 years, 2 months, and 
28 days of qualifying service for Reserve retirement between 4 September 1969 and 2 December 2000.

2.  On 28 January 1992, a United States Army Reserve Personnel Center, St. Louis, MO (ARPERCEN) memorandum notified the applicant she had completed the required years of service and was eligible for retired pay at age 60 upon application.


3.  The ARPERCEN memorandum also informed the applicant she had 90 days from the date she received this memorandum to complete a
DD Form 1883 (SBP Election Certificate).  It further notified her if she failed to submit a DD Form 1883 she would not be allowed to obtain SBP coverage until she applied for retired pay at age 60.  There is no evidence the applicant completed a DD Form 1883 at the time.

4.  The applicant completed a DD Form 2656 on 9 January 2009 for inclusion in her retirement packet.  Section IX (SBP Election) of this form shows she elected "Spouse Only" SBP coverage in item 26 (Beneficiary Categories) and coverage based on the "threshold" amount in effect on the date of retirement in item 27 (Level of Coverage).  The applicant and witness signed the form on 9 January 2009 in Section XI (Certification) and the applicant's spouse signed the form on
8 January 2009 in Section XII (SBP Spouse Concurrence), item 32a (Signature). The notary witness also signed the form on 8 January 2009 in item 33 (Notary Witness).

5.  On 6 February 2009, United States Army Human Resources Command, 
St. Louis (HRC-St. Louis) published Orders PO2-901366.  These orders directed the applicant's retirement and placement on the Retired List in the retired grade of colonel, effective 19 July 2009.

6.  On 12 August 2009, the applicant received a letter from the Defense Finance and Accounting Service (DFAS) summarizing her retired pay account.  This letter showed full SBP coverage.

7.  The applicant contacted DFAS and was informed the SBP level of coverage election of full pay was the result of her spouse signing the DD Form 2656 before she did.  This resulted in the default full coverage level.  The applicant was advised to apply to this Board for relief.

8.  The applicant now provides a letter to the Board, signed by both her and her spouse, requesting her record be corrected to show she elected SBP coverage at the threshold amount and that this election be made retroactive to the date of her retirement.  It further indicates she and her spouse affirm this SBP threshold amount election with their signatures.  The applicant and her spouse signed this letter on 13 August 2009.  She also explains the original DD Form 2656 signature date errors were the result of the notary's refusal to witness both her and her spouse's signature and the absence of another witness at the time the form was notarized.


9.  The DD Form 2656 "Instructions" page states for Section XII spouse concurrence must be obtained and dated on or after the date of the member's election, but before the retirement/transfer date.  If concurrence is not obtained when required, maximum coverage will be established for the spouse and children, if appropriate.

10.  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.  An election, once made, is irrevocable, except in certain circumstances as provided for by law.  In cases of an election of no coverage or less than full coverage, spouse concurrence is required.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that at the time of her retirement she elected "Spouse Only" SBP coverage at the "threshold" amount level of coverage and her spouse concurred with this election has been carefully considered and found to have merit.

2.  The instructions for completing the DD Form 2656 clearly state spouse concurrence must be obtained and dated on or after the date of the member's election.  It is clear the date entered in item 32b (Date Signed) of the DD Form 2656 submitted by the applicant is one day prior to the date of the applicant's signature as listed in item 30b (Date Signed) of the form; however, this clearly seems to be the result of an administrative error based on the notary's refusal to witness both signatures and the absence of a second witness when the form was notarized.

3.  There is no evidence suggesting the applicant was trying to mislead her spouse or make an SBP election without the concurrence of her spouse.  This fact is evidenced by the joint statement now provided by the applicant and her spouse.  Therefore, it would be appropriate and serve the interest of equity and justice to correct the record to show the applicant elected a threshold amount level of coverage on 9 January 2009 and the applicant's spouse concurred with this election on 9 January 2009.

4.  Further, based on this correction, it would also be appropriate to reimburse the applicant the difference between the full coverage and threshold amount premiums collected from the date of retirement through the date this decision is implemented.


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 she elected "Spouse Only" SBP coverage at the "threshold" amount level of coverage on 9 January 2009;
   
   b.  showing this election was concurred with by her spouse on 9 January 2009; and
   
   c.  by providing her the difference between the full amount and threshold amount premiums collected from the date of retirement through the date this decision is implemented.



      ___________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)                                         AR20090014083



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ABCMR Record of Proceedings (cont)                                         AR20090014083



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