IN THE CASE OF:	  

		BOARD DATE:	 11 March 2010

		DOCKET NUMBER:  AR20090014707 


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 records to show she elected not to participate in the Survivor Benefit Plan (SBP).

2.  The applicant states that at the time of her retirement, there was confusion as to whether she would need the SBP or not.  Due to this confusion, the form to decline the SBP was not received timely.  She would now like her SBP coverage to stop. 

3.  The applicant provides a copy of her DD Form 2656 (Data for Payment of Retired Personnel), dated 25 February 2009; a copy of the Spouse SBP Election Concurrence Statement, dated 25 February 2009; and a copy of Retirement Services Office (RSO) letter, dated 25 February 2009, to the applicant's spouse, in support of her request. 

CONSIDERATION OF EVIDENCE:

1.  With prior service in the Regular Army, the applicant enlisted in the U.S. Reserve (USAR) on 8 January 1994.  She was trained in and held military occupational specialty 42A (Human Resources Specialist).  She executed a series of extensions and/or reenlistments in the USAR throughout her military career and attained the rank/grade of staff sergeant (SSG)/E-6.  She entered active duty on 17 June 2001.

2.  The applicant’s records also show she married her spouse, L----, on 7 June 2005.
3.  On 20 December 2007, the U.S. Army Human Resources Command, St. Louis, MO, issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified the applicant that she had completed the required years of service and would be eligible for retired pay upon application at age 60.  However, there is no indication she responded or made an RCSBP election at that time.  

4.  On 15 January 2009, a physical evaluation board convened at Fort Sam Houston, TX, and determined that the applicant's medical conditions prevented reasonable performance of the duties required by her grade and specialty.  The PEB recommended she be placed on the temporary disability retirement list (TDRL) with reexamination in May 2010.  The applicant concurred on 23 January 2009. 

5.  On 25 February 2009, the applicant completed a DD Form 2656.  She placed an "X" in item 26g (Survivor Benefit Plan Election) of Section IX, indicating that she had eligible dependents under the plan; however, she elected not to participate in the SBP and authenticated this form by placing her signature in the appropriate place.  An RSO SBP counselor also authenticated this form by placing her signature and date in the appropriate blocks.

6.  Section XII (SBP Spouse Concurrence) of the DD Form 2656 instructs the applicant that "SBP spouse concurrence is required when a member is married and elects child(ren) only coverage, does not elect full spouse coverage, or declines coverage.  The date of the spouse's signature in item 32b (Spouse-Date Signed) MUST NOT be before the date of the member's signature in item 30b (Member-Date Signed))."  

7.  On 25 February 2009, by letter, the RSO SBP counselor notified the applicant's spouse that she had elected not to enroll in the SBP and that he must complete an accompanying Spouse SBP Concurrence Statement prior to 26 February 2009 and that his signature must be notarized or his concurrence would be invalid. 

8.  On 25 February 2009, the applicant's spouse initialed the Spouse SBP Election Concurrence Statement indicating his concurrence with his spouse's election and had the form notarized.  Additionally, he completed Section XII (SBP Spouse Concurrence) of the DD Form 2656, placed his signature in item 32a (Signature) and the date (25 February 2009) in item 32b.  He also had the form notarized.  However, there is no indication of the exact date he returned the forms to the RSO.

9.  The applicant was honorably retired and placed on the TDRL in her retired rank/grade of SSG/E-6 on 25 February 2009 by reason of temporary disability.  The DD Form 214 she was issued shows she completed a total of 9 years, 5 months, and 1 day of creditable active service.

10.  On 4 March 2009, the RSO received the Spouse SBP Concurrence Statement by mail and submitted the form to the Defense Finance and Accounting Service (DFAS) on the same date.

11.  An email, dated 15 January 2010, from DFAS, shows the applicant had full spouse SBP coverage and had monthly deductions of $101.99 until July 2009.  She went into a non-pay status and was responsible for making direct remittance payments but did not make any. 

12.  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 of retirement or else coverage automatically defaults to spouse coverage, if applicable.

13.  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.

14.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a 1-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from SBP.  The spouse’s concurrence is required.  No premiums will be refunded to those who opt to disenroll.  The effective date of termination is the first day of the first calendar month following the month in which the election is received by the Secretary concerned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her records should be corrected to show she elected not to participate in the SBP.

2.  The evidence of record shows that upon receipt of her 20-year letter, she did not respond or make an RCSBP election. Her failure to respond resulted in her election defaulting to spouse coverage as a matter of law.


3.  The evidence of record also shows she submitted a DD Form 2656 on 25 February 2009 wherein she elected, in the presence of an RSO counselor, not to participate in the SBP.  However, by law, her spouse was required to authenticate this form on or after the date she made this election but prior to the date of retirement.  Her spouse did so, on 25 February 2009; however, the spouse concurrence was received by the RSO on 4 March 2009, and sent to DFAS on the same date.  Since the spouse concurrence did not occur prior to the applicant's retirement date, her SBP coverage defaulted to spouse coverage. 

4.  There is no evidence that the applicant was not counseled properly at the time she made her election or an indication that she did not understand the need to ensure the spouse concurrence was submitted prior to her retirement date.  

5.  Retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started to withdraw from SBP.  The spouse’s concurrence is required.  No premiums will be refunded to those who opt to disenroll.  

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)                                         AR20090014707



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ABCMR Record of Proceedings (cont)                                         AR20090014707



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