IN THE CASE OF:
BOARD DATE: 17 June 2010
DOCKET NUMBER: AR20090019375
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 his records to show he elected not to participate in the Survivor Benefit Plan (SBP).
2. The applicant states the following:
a. The DD Form 2656 (Data for Payment of Retired Personnel) was submitted by the Camp Humphreys Retirement office prior to his retirement date stating his desire not to participate in SBP.
b. The DD Form 2656 of his election not to participate in SBP was not processed due to an error on the form.
c. The Defense Finance and Accounting Service (DFAS) has the original DD Form 2656 on file along with other documents he submitted after retirement regarding stopping SBP coverage.
d. He retired from active duty overseas (Camp Humphreys, South Korea) with an effective retirement date of 1 July 2009.
e. He and his spouse declined SBP coverage and he notified DFAS that the SBP payments were being deducted from his retired pay.
f. DFAS informed him that SBP was granted by default because of the error on the original DD Form 2656.
3. The applicant provides a copy of his letter addressed to DFAS, dated 13 August 2009, and a Spouse SBP Election Concurrence Statement in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 28 June 1988. He was married on 6 August 1991.
2. On 7 August 2008, the applicant completed a DD Form 2656 and he elected not to participate in SBP. His spouse did not sign the DD Form 2656 under Section XII (SBP Spouse Concurrence) to indicate she concurred with the SBP decision made by her spouse. However, in a notarized statement, dated
18 August 2008, the applicant's spouse concurred with his decision to decline SBP.
3. The applicant retired on 1 July 2009.
4. On 13 August 2009, the applicant sent a letter to DFAS in regard to the SBP. He stated that he and his wife had decided to decline SBP but it was currently being taken out of his retired pay. In the letter, he explained he spoke with several representatives at DFAS and the Retirement Services Officer (RSO) to resolve this matter. He was informed that he needed to submit a written request not to participate in the SBP. Also, he was informed that DFAS had received his original DD Form 2656, but the form contained an error.
5. 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 to decline to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse (or child only coverage, if applicable) coverage.
6. 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 retired on 1 July 2009.
2. The applicant completed a DD Form 2656 on 7 August 2008 and elected not to participate in SBP. His spouse did not sign the DD Form 2656 indicating she concurred with his decision to decline participation in the SBP.
3. However, the applicant's spouse provided a notarized statement, dated
18 August 2008, concurring with his decision to decline the SBP. This statement, though timely, was apparently not married up the applicants DD Form 2656. As a result, he was automatically enrolled in the SBP.
4. It appears it was the applicant's and his spouses intent to decline participation in the SBP. Therefore, as a matter of equity, it would be appropriate to amend the applicants DD Form 2656 to show he declined to participate in the SBP in a timely manner and to refund him any paid premiums.
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. amending his DD Form 2656 to show he and his spouse signed the form declining to participate in the SBP,
b. showing DFAS timely received and processed the DD Form 2656 confirming declination of SBP, and
c. refunding him all SBP premiums paid as a result of this correction.
___________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) AR20090019375
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ABCMR Record of Proceedings (cont) AR20090019375
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