IN THE CASE OF:
BOARD DATE: 15 December 2009
DOCKET NUMBER: AR20090015723
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, that his military records be corrected by canceling his Survivor Benefit Plan (SBP) election for spouse and children coverage.
2. The applicant states, in effect, that on 2 November 2006 he and his wife signed a DD Form 2656 (Data for Payment of Retired Personnel) declining the SBP. He contends that the individual who certified and witnessed this form made a clerical error and dated the form 2 October 2006. He indicates that this error has allowed the Defense Finance and Accounting Service (DFAS) to automatically enroll him in the SBP, garnish his wages, and back date his enrollment in the SBP to 2 November 2006. He states that this has created an incredible financial burden upon his family.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); a letter, dated 14 September 2009; a DD Form 2656, dated 2 November 2006; and a sworn statement, dated 1 October 2009, from his spouse in support of his application.
CONSIDERATION OF EVIDENCE:
1. Having prior enlisted service, the applicant entered active duty as a warrant officer on 24 October 2001.
2. The applicants DD Form 2656, dated 2 November 2006, shows he elected not to participate in the SBP. Section XI (SBP Spouse Concurrence (Required when member is married and elects children only coverage, does not elect full spouse coverage, or declines coverage)) on this form shows his spouse concurred with his election on 2 November 2006. Item 33c (Date Signed) on this form shows the witness certified the form on 2 October 2006.
3. On 6 November 2006, the applicant was retired and placed on the Temporary Disability Retired List the following day.
4. Records at DFAS show the applicant's DD Form 2656 was deemed an invalid election since the witness date is prior to the applicant's and his spouse's signatures. Coverage for spouse and children was initiated.
5. In support of his claim, the applicant provided a sworn statement, dated
1 October 2009, from his spouse concurring with his original election to decline SBP.
6. 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.
7. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant elected not to participate in the SBP and his spouse concurred with his election on 2 November 2006. However, since item 33c on the DD Form 2656 is dated prior to the date the applicant and his spouse signed it, the applicant was automatically enrolled in the SBP for spouse and children coverage.
2. Since the applicant's spouse concurred with an election of no coverage at the time of the applicant's election and has recently reaffirmed her concurrence, it would be equitable to correct his records to show he elected not to participate in the SBP in a timely manner.
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 amending item 33c on the DD Form 2656 to show the witness signed the form on 2 November 2006.
_______ _ 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) AR20090015723
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ABCMR Record of Proceedings (cont) AR20090015723
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