IN THE CASE OF:	  

		BOARD DATE:	  15 July 2010

		DOCKET NUMBER:  AR20090019404 

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 his military records be corrected to show he declined enrollment in the Survivor Benefit Program (SBP).

2.  The applicant states he declined SBP on his DD Form 2656 (APR 2006) (Data for Payment of Retired Personnel).

3.  The applicant provides copies of:

* his DD Form 2656, dated 7 June 2009
* his Summary of Retired Pay Account, dated 29 July 2009
* a cover sheet from U.S. Army Human Resources Command

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a second lieutenant in the Massachusetts Army National Guard (MAARNG) on 28 July 1976.  He had previously served 2 years, 11 months, and 26 days in an enlisted status in the MAARNG.  On 1 November 1977, the applicant was separated from the MAARNG to accept assignment in the U.S. Army Reserve (USAR).  On 31 January 1993, the applicant was transferred to the USAR Control Group (Reinforcement).

2.  On 15 March 1993, the applicant was notified he had completed the required years of service for eligibility for retired pay on application at age 60.  His election under the Reserve Component (RC) SBP was not available for review.

3.  On 7 June 2009, the applicant completed his DD Form 2656.

	a.  He entered his wife's name in item 13, section V (Designation of Beneficiaries for Unpaid Retired Pay).

	b.  Item 22 (Spouse), item 23 ( Date of Marriage), and item 24 (Place of Marriage) of section VIII (Dependency Information) are blank.

	c.  Item 26g (I Elect Not to Participate in SBP) of section IX (SBP Election) is not checked.  However, he checked the block labeled "Do Not Have Eligible Dependents under the Plan."

	d.  In item 29, section X (Remarks) he wrote, "I decline SBP."

	e.  Item 30 (Spouse) of section XI (SBP Spouse Concurrence) is signed by the same person the applicant entered in item 13 as his spouse.  However, there is no evidence this signature was notarized.  The signature was witnessed, but there is no indication the witness was a notary public.

4.  A Summary of Retired Pay Account prepared on 29 July 2009 by the Defense Finance and Accounting Service (DFAS) Cleveland Center indicated the applicant had elected not to be covered by the SBP.

5.  A letter, dated 31 August 2009, from DFAS to the applicant advised him an adjustment was being made in the SBP portion of his retired pay account based on receipt of his DD Form 2656.  The adjustment was from declined coverage to spouse coverage based on the full base amount of $828.00 with an effective date of 2 July 2009.

6.  Department of Defense Instruction (DODI) 1332.42, in effect at the time, provided the responsibilities and procedures for administering the Survivor Annuity Program, which is comprised of the SBP and the RCSBP.

	a.  Paragraph E3.2.1 stated a member entitled to retired pay based on active service who had a spouse or dependent child was considered a participant having maximum SBP coverage unless the member, with spousal concurrence if married, elected less-than-maximum spouse coverage, child-only coverage, or not to participate in the program.  Unless such election was made prior to the first day of entitlement to retired pay, automatic coverage for maximum spouse or spouse and child coverage was to be entered.  An election under this paragraph was irrevocable unless otherwise provided by law if not revoked before the date on which the person first became entitled to retired pay.

	b.  Paragraph E3.2.2 stated an RC member who has a spouse or dependent child upon being notified of eligibility to receive retired pay is considered a participant having maximum RCSBP coverage unless the member, with spousal concurrence if married, elects less-than-maximum spouse coverage for an immediate annuity, child-only coverage, deferred coverage, or not to participate in the program.  An election for less-than maximum RCSBP coverage must be received by the member's service within the 90-day period immediately following such notification of eligibility.  An election under this paragraph is irrevocable unless otherwise provided by law if not revoked before the end of the 90-day period.

	c.  Paragraph E3.5.1 stated written spousal concurrence was required when the member elected to decline coverage or provide the spouse with less than the maximum SBP coverage available, to include electing child-only coverage, and when a member eligible for RCSBP declines coverage or elects coverage that provides less than a maximum immediate spouse annuity.

Office of the Under Secretary of Defense memorandum, dated 19 December 2007, provided an interim change that requires spousal consent be notarized in the case of a member who declines or elects less than full SBP coverage upon initial eligibility to elect such coverage.  The effective date of this change is for all SBP and RCSBP elections made on or after 1 May 2008.

7.  On 13 July 2010, the applicant submitted a notarized statement from his wife that stated she concurred with her husband's SBP election to not participate in the SBP.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he declined SBP at the time of his application for retired pay.

2.  At the time the applicant applied for retirement pay on 7 June 2009, he indicated he declined SBP.  The DD Form 2656 is signed by the applicant and his spouse, concurring with the election.  However, his spouse's signature was not notarized.

3.  The Office of the Under Secretary of Defense published an interim change on 19 December 2007 requiring a spousal consent to be notarized for all SBP elections declining or electing less than full coverage made on or after 1 May 2008.  This change was made over 1 year before the applicant made his SBP election on 7 June 2009.  However, the date of the new form is April 2009.
4.  At the time the applicant submitted his retired pay information and application, he had not been actively participating in the Reserves for more than 16 years.  The DD Form 2656 he and his wife completed on 7 June 2009 was the April 2006 version of the form, certainly not something so dated as to make a reasonable person wary of the potential for significant changes in its completion requirements.  The April 2006 version of the form does not indicate anywhere that the spouse's signature must be notarized.

5.  Therefore, as a matter of equity, it would be appropriate to change the applicant's records to show on 7 June 2009 he declined participation in the SBP, his wife concurred with this election, and her signature was notarized.  It would also be appropriate to return any premiums collected to the applicant.

BOARD VOTE:

___X____  __X_____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 changing the DD Form 2656 he and his wife completed on 7 June 2009 to show his wife's signature in block 30 is notarized.

2.  The Defense Finance and Accounting Service (DFAS) should make any adjustments required based on the above correction and return any premiums previously collected.




      __________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)                                         AR20090019404



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ABCMR Record of Proceedings (cont)                                         AR20090019404



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