IN THE CASE OF:
BOARD DATE: 6 April 2010
DOCKET NUMBER: AR20090015165
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 change of his Survivor Benefit Plan (SBP) election from spouse coverage to coverage for children only and refund of past SBP premiums paid.
2. The applicant states that he, along with his spouse, elected to have coverage for children only for SBP. Unfortunately, his spouse did not date the form so it was an invalid election. As a result, he was automatically enrolled with spouse coverage. He subsequently had over $200.00 deducted from each retired paycheck rather than $18.00. He submitted another DD Form 2656 (Data for Payment of Retired Personnel) on 13 May 2009 but it was invalid because he was past his retirement date. He claims that he has twice tried to correct this error. He sent a DD Form 149 (Application for Correction of Military Record) to the retired pay services in July 2009. He wants coverage for children only, not spouse coverage, and he wants the overpayments restored to him.
3. The applicant provides two DD Forms 2656, dated 28 January 2009 and
13 May 2009; and an additional DD Form 149, dated 3 July 2009.
CONSIDERATION OF EVIDENCE:
1. The applicant was married on 28 August 1987. After having prior active and inactive service, he was appointed as a Reserve commissioned officer on 2 July 1991 with a concurrent call to active duty.
2. On 28 January 2009, the applicant completed a DD Form 2656 and enrolled in the SBP for coverage for children only based on full gross pay. His DD Form 2656 indicates that he was married at the time of his election. In Section VIII (Dependency Information), block 25, the applicant listed five dependent children. His spouse signed Section XII (SBP Spouse Concurrence), block 32a, but block 32b does not contain the date she signed the form. A notary signed and witnessed the form on 28 January 2009.
3. The applicant retired from the Regular Army on 1 May 2009.
4. On 13 May 2009, the applicant submitted a second DD Form 2656 and again enrolled in the SBP for coverage for children only, full gross pay. His spouse signed under Section XII and entered in block 32b the date "13 May 2009."
5. Information obtained from the Defense Finance and Accounting Service (DFAS) on 17 March 2010 revealed that the applicant was enrolled in the SBP for spouse and children coverage on 1 May 2009.
6. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. However, surviving children are only entitled to SBP payments until reaching age 22 in certain cases. Changes in SBP options are not authorized except in specific instances, or authorized by law.
DISCUSSION AND CONCLUSIONS:
1. The applicant completed and signed a DD Form 2656 on 28 January 2009 and elected participation in the SBP for coverage for children only, full gross pay. Even though his spouse concurred with his decision and signed under Section VIII, she did not enter the date she signed the form. However, the notary who witnessed her signature also signed the form on 28 January 2009. Records at DFAS confirm the applicant was enrolled for spouse and children coverage in the SBP because this form was treated as invalid.
2. The applicant completed and signed another DD Form 2656 on 13 May 2009 and again he elected participation in the SBP for children only coverage, full gross pay. His spouse concurred with his decision and she signed and dated the form under Section VIII. However, this form was submitted subsequent to the date he retired; therefore, this SBP election was invalid.
3. It appears that it was the applicants and his spouses intent to participate in the SBP for children only coverage; however, by the spouse omitting the date of her concurrence, the application was deemed invalid, resulting in the addition of spouse coverage. This was truly an administrative error. Therefore, as a matter of equity, it would be appropriate to amend the applicants DD Form 2656 to show his spouse concurred with his decision to participate in the SBP for children only coverage on 28 January 2009 and to refund the applicant any premium overpayments.
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 by:
a. showing his spouse signed and dated the DD Form 2656 on 28 January 2009 electing to participate in the SBP for children only coverage,
b. showing that DFAS timely received and processed the DD Form 2656 for children only coverage, and
c. DFAS refunding any SBP premiums already collected in excess of the actual premium payments due.
_________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) AR20090015165
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ABCMR Record of Proceedings (cont) AR20090015165
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