IN THE CASE OF:
BOARD DATE: 16 March 2010
DOCKET NUMBER: AR20090014732
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, in effect, correction of his records to show he declined the Survivor Benefit Plan (SBP) at retirement.
2. The applicant states there was no time at the end of his tour at the Office of the Secretary of Defense (OSD) to attend any classes to become educated on this issue.
3. The applicant provides a copy of a separation and property settlement agreement, a divorce decree, and a DD Form 2656 (Data for Payment of Retired Personnel) in support of this application.
CONSIDERATION OF EVIDENCE:
1. The applicant was separated for sufficient service for retirement on 30 June 2008 after completing 34 years and 28 days of total active service. He was placed on the Retired List on the following day in the rank of major general.
2. In the processing of this case, a staff member of the Board contacted the Defense Finance and Accounting Service (DFAS) regarding the applicant's SBP coverage election on file. The DFAS indicated per e-mail that they have no documents indicating the applicant declined SBP coverage for his spouse. DFAS indicated they had several DD Forms 2656 declaring coverage for spouse only. DFAS further indicated the applicant's account was suspended on
26 October 2008 due to their divorce, which was effective 9 September 2009.
DFAS indicated in the e-mail that a manual SBP premium refund was executed for October 2009 and that the applicant received it on 2 November 2009. DFAS indicates the applicant's account currently reflects "no beneficiary," and that the applicant has the option to reinstate spouse coverage in the event he remarries.
3. The applicant's SBP election documents provided by DFAS for the Board's review show that on 18 April 2008 he completed a DD Form 2656. In section IX (SBP Election) of this form, the applicant checked that he elected coverage for spouse only, based on full gross pay. Section XI (SBP Spouse Concurrence) does not contain the signature of the applicants spouse. The instructions for completing Section XI are, "Required when a member is married and elects child(ren) only coverage, does not elect full spouse coverage, or declines coverage
." Evidence of record shows the applicant was married at the time this document was signed.
4. The applicant provided a copy of a DD Form 2656, dated 11 June 2009, with his application to the Board. Section VIII (Dependency Information) contains his spouse's (now divorced) and a son's name. Section IX shows his spouse's (now divorced) name in block 28 (Insurable Interest Beneficiary). The now divorced spouse's signature and a date signed of 11 June 2009 appear in block 32 (Spouse). The applicant does not explain why he completed and forwarded this DD Form 2656 to the Board with his application.
5. A separation and property settlement agreement, dated 17 August 2009, provided by the applicant shows that his wife waived any interest in SBP coverage.
6. The applicant's divorce decree, dated 9 September 2009, contains no mention of the SBP.
7. 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. Elections are made by category, not by name. An election, once made, is permanent and irrevocable except as provided for by law.
8. Public Law 94-496, enacted on 14 October 1976, but effective 1 October 1976, established that spouse SBP coverage costs would be suspended if marriage ends in death or divorce and that a waiting period for a new spouse's eligibility was reduced to 1 year following post-retirement marriage.
9. Public Law 99-145, enacted on 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.
10. Public Law 105-85, enacted on 18 November 1997, established the option to terminate SBP participation. 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 spouses 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 completed his DD Form 2656 on 18 April 2008 prior to his retirement. He indicated on the form that he elected to participate in the SBP for spouse coverage, full base amount. His spouses signature was not needed for his election. A spouses signature is required only when the member elects not to provide for full spouse coverage. The instructions on the DD Form 2656 informed him of that.
2. The applicant retired on 30 June 2008. He had until that date to change his SBP election. If he and his spouse did not want the SBP, he had more than 2 months in which he could have completed a new DD Form 2656 and obtained his spouses concurrence to his declination on the new DD Form 2656. There is no evidence of record and he does not provide any evidence to show that he completed a new DD Form 2656 prior to his retirement date.
3. There is no evidence that the applicant did not receive an SBP briefing. However, even if he had not received an SBP briefing, the SBP election form is self-explanatory (completion instructions are on pages 3-4 of the DD Form 2656). While the applicant's divorce eliminated his need for the SBP, he was divorced after his retirement.
4. DFAS indicated the applicant requested termination of his SBP coverage in October 2009. Per communication with DFAS, he was refunded the premium paid for October 2009.
5. While the applicant's SBP spouse coverage is suspended, he will have a one-year opportunity, beginning on 1 July 2010, in which he may terminate (with his spouses concurrence, if remarried) his participation in the SBP. It is recommended that the applicant discuss these issues with a Retirement Services Officer, if he has not already done so, before making a final decision about terminating his SBP.
6. In view of the foregoing, there is no basis for granting the applicant's requested relief.
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) AR20090014732
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ABCMR Record of Proceedings (cont) AR20090014732
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