IN THE CASE OF:
BOARD DATE: 20 May 2010
DOCKET NUMBER: AR20090016155
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 the level of his Survivor Benefit Plan (SBP) coverage be changed from full amount to reduced coverage.
2. The applicant states the following:
a. He completed a DD Form 2656 (Data for Retired Personnel) and elected spouse-only coverage with a reduced base amount of $595.00.
b. He signed the form and his wife also signed concurring with the election.
c. Both his and his wife's signatures were witnessed by third parties.
d. The SBP election paperwork was submitted and processed. When he checked its status he was informed everything, to include the reduced amount level of coverage, was in order.
e. He received his first retired pay and saw the SBP premium was based on the full amount and not reduced coverage.
f. He called the Defense Finance and Accounting Service and was informed the SBP premium collection made on the first retired pay payment often is based on the full amount and it should be corrected by the second payment.
g. He called after the second payment was the same and was informed the signatures had not been notarized at the time the form was completed.
3. The applicant is requesting to be allowed to properly complete the form to show the proper notary seal and to be allowed to have the adjustment made to his retired pay. The poor advice he received from the retirement services office indicating his paperwork was correct is the basis for his request.
4. The applicant provides his DD Form 2656 in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant's record confirms he completed 20 years of qualifying service for Reserve retirement between 8 June 1973 and 1 July 2001.
2. On 26 March 1994, a U.S. Army Reserve Personnel Center, St. Louis, Missouri, memorandum notified the applicant he had completed the required years of service and was eligible for retired pay at age 60 upon application. It also informed him he had 90 days from the date he received this memorandum to complete a DD Form 1883 (SBP Election Certificate). It further notified him if he failed to submit a DD Form 1883, he would not be allowed to obtain SBP coverage until he applied for retired pay at age 60. There is no evidence the applicant completed a DD Form 1883 at the time.
3. The applicant completed a DD Form 2656 on 15 April 2009 for inclusion in his retirement packet. Section IX (SBP Election) of this form shows he elected "spouse only" SBP coverage in item 26 (Beneficiary Categories). Item 27 (Level of Coverage) shows he elected coverage based on a reduced amount of $595.00.
4. Section XI (SBP Spouse Concurrence) of the DD Form 2656 contains the signature of the applicant's spouse in item 30a (Signature); item 30b (Date Signed) shows she signed the form on 16 April 2009. Item 31a (Witness Name) contains the name of the third party who witnessed the spouse's signature; item 31b (Signature) contains the witness's signature; item 31c (Date Signed) shows the witness signed the form on 16 April 2009.
5. Section XII (Certification) of the DD Form 2656 contains the applicant's signature in item 32a (Member Signature) and item 32b (Date Signed) shows he signed the form on 15 April 2009. Item 33a contains the name of the third party who witnessed the applicant's signature; item 33b (Signature) contains the witness's signature; item 33c (Date Signed) shows the witness signed the form on 15 April 2009.
6. On 30 April 2009, U.S. Army Human Resources Command, St. Louis, Missouri, published Orders PO4-905504. These orders directed the applicant's retirement and placement on the Retired List in the retired grade of lieutenant colonel effective 4 June 2009.
7. The DD Form 2656 "Instructions" page states for section XII (SBP Spouse Concurrence), Title 10 of the U.S. Code, section 1448, requires an otherwise eligible spouse to concur if the member declines to elect SBP coverage, elects less than maximum coverage, or elects child-only coverage. Therefore, a member with an eligible spouse upon retirement who elects any combination other than items 26a or 26b and 27a, must obtain the spouse's concurrence in section XII. A Notary Public must be the witness.
8. On 26 April 2009, a member of the Board staff contacted the applicant and notified him that in order for the Board to render a fair and impartial decision in his case, he would have to provide a notarized statement from his spouse confirming her concurrence with his reduced coverage SBP election.
9. On 6 May 2010, the applicant responded to the request by providing a notarized DD Form 2656 in which his spouse concurs with his reduced SBP election.
10. 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. 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 request that his original reduced-amount SBP election be accepted has been carefully considered and found to have merit. The evidence shows the applicant completed his DD Form 2656 electing spouse-only SBP coverage at a reduced-amount level of coverage of $595.00 and his wife concurred with the election.
2. The evidence also shows the applicant tracked his election and was informed it was complete and would be processed, only to find out when he received retired pay that his reduced-amount level of SBP coverage election was, in fact, not accepted because a notary had not signed his DD Form 2656.
3. Given the applicant believed he had properly completed the necessary paperwork for his SBP and was erroneously informed of such, it would serve the interest of equity and justice to correct his record by accepting the election he made on the DD Form 2656 he signed on 15 April 2009 with which his spouse concurred on 16 April 2009 based on the notarized DD Form 2656 now provided with the notarized concurrence of his spouse. In addition, the applicant should be reimbursed the difference between the full-coverage premium payments and the reduced-amount premiums due collected from his retired pay since the date of his retirement through the date this action 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 his spouse's concurrence with his election of SBP based on a reduced base amount was properly notarized on 16 April 2009 and accepted by DFAS officials and
b. providing the applicant a refund of the difference between the full amount premium and the reduced amount premium collected from his retired pay from the date of his retirement through the date this correction 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) AR20090016155
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20090016155
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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