IN THE CASE OF:
BOARD DATE: 15 July 2010
DOCKET NUMBER: AR20090019420
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 termination of her participation in the Survivor Benefit Plan (SBP).
2. The applicant states, in effect, she and her spouse never elected to participate in the SBP, but the Defense Finance and Accounting Service (DFAS) is withholding premiums.
3. The applicant provides a copy of her:
* DD Form 2656 (Data for Payment of Retired Personnel), dated 20 September 2007
* DD Form 2656, dated 30 October 2009
CONSIDERATION OF EVIDENCE:
1. The applicant is a U.S. Army Reserve (USAR) lieutenant colonel. She was born on 20 September 1949. On 6 June 1994, she received her Notification of Eligibility for Retired Pay at Age 60 (20-year letter).
2. On 3 September 1994, the applicant completed a DD Form 1883 (Survivor Benefit Plan Election Certificate) selecting option A to defer election until eligible for retired pay.
3. Orders A-041-1, Headquarters, 143rd Transportation Command, Orlando, FL, dated 10 February 1999, reassigned the applicant from her troop program unit to the U.S. Army Reserve Control Group (Reinforcement), effective 30 January 1999.
4. The applicant became eligible for retired pay on 20 September 2009. On 20 September 2007, the applicant submitted a DD Form 2656 declining to participate in the SBP. Her spouse concurred and signed in the appropriate place on the form on 19 September 2007.
5. A review of DFAS records reveals SBP premiums being withheld from the applicant's retired pay.
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. The election must be made prior to the effective date of retirement or else coverage automatically defaults to spouse coverage, if applicable.
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 anything less than the maximum spouse coverage.
DISCUSSION AND CONCLUSIONS:
1. The applicant wants her SBP terminated.
2. It is clear the applicant and her spouse did not want to participate in and never elected to participate in the SBP. When she received her 20-year letter, the applicant chose to defer election of SBP. When she completed her request for retired pay in advance of her eligibility, she declined SBP and her husband concurred. Unfortunately, her husband dated his concurrence one day before her election. This voided the document and defaulted SBP to full coverage.
3. It would be in the interest of justice and equity to grant the applicant's request.
BOARD VOTE:
___X____ ____X___ ____X___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined 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 the applicant accurately completed the DD Form 2656 on 20 September 2007 electing not to participate in the SBP, that her spouse concurred with her decision on the same date, and that DFAS timely received and processed the DD Form 2656 with the spouse's concurrence with the applicant's SBP election; and
b. reimbursing any premiums already paid by the applicant.
___________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) AR20090019420
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20090019420
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2008 | 20080011481
The applicant requests, in effect, that her records be corrected to reflect that she elected not to participate in the Survivor Benefit Plan (SBP) and that she be reimbursed for all of the deductions from her retired pay. Additionally, the applicant has not submitted any current verification of her spouse's concurrence or non-concurrence with her desire to correct her records to show she elected not to participate in the SBP; therefore, it would not be appropriate for the Board to make the...
ARMY | BCMR | CY2012 | 20120000922
The applicant requests correction of the date in item 3 (Retirement/Transfer Date) of a DD Form 2656 (Data for Payment of Retired Personnel) and correction of her record to stop participation in the Survivor Benefit Plan (SBP). Reservists who elect option A are required to make an SBP election when applying for retired pay at age 60. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the 6 August 2009 DD Form 2656...
ARMY | BCMR | CY2012 | 20120006674
Her retiree account statement is not available for review; however, without her spouse's signature in item 32a of her DD Form 2656, indicating his concurrence with her decision to decline participation in the SBP, her SBP election would automatically default to spouse-only coverage by law. By law, since her spouse did not acknowledge his concurrence of her election not to participate in the SBP prior to her effective date of retirement, it is proper that her SBP election defaulted to...
ARMY | BCMR | CY2010 | 20100016366
The evidence of record shows that subsequent to receiving her 20-year letter, the applicant elected Option A wherein she declined enrollment at that time and deferred her SBP election to age 60. The evidence of record shows she retired on 6 May 2010, at age 60. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing the applicant accurately completed the DD Form 2656 on 30 March 2010 electing not to participate in...
ARMY | BCMR | CY2008 | 20080018041
The ABCMR analyst of record telephonically contacted the DFAS Retired Pay Office on 23 January 2009, which confirmed that the DD Form 2656, dated 10 July 2008 was not authenticated by the spouse on or after the date the applicant made his election. In a notarized statement, dated 27 January 2009, the applicant's spouse indicated that she had previously agreed with her husband's decision to not participate in the SBP and that she previously signed the one form provided by the Fort Drum, NY,...
ARMY | BCMR | CY2009 | 20090001582
The applicant's Retiree Account Statement, dated 9 July 2008, shows an SBP deduction of $268.84 for spouse only coverage, indicating that he was covered under the SBP for spouse coverage. The evidence of record shows that the applicant submitted a DD Form 2656 wherein he elected, in the presence of an RSO counselor, not to participate in the SBP. The SBP spouse concurrence statement shows she concurred with his decision after the date he made that decision but not before he retired.
ARMY | BCMR | CY2009 | 20090002540
The applicant requests, in effect, that her records be corrected to show she declined participation in the Reserve Component Survivor Benefit Plan (RCSBP) and that she receive reimbursement for any and all deductions from her retirement pay. The 20-Year Letter, dated 28 July 2004, also stated that "NOTE: Public Law 106-398, 30 October 2000, requires that upon receipt of this Letter, a qualified Reserve Component member, who is married, will automatically be enrolled in the RCSBP under...
ARMY | BCMR | CY2010 | 20100011734
In effect, she requests correction of her records to show, at the time she retired, she elected not to participate in the SBP. Although she and her spouse failed to make the election before her retirement, it appears the RSO counselor also failed to inform her or her spouse that the SBP election was required to be signed and dated before the effective date of her retirement. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected...
ARMY | BCMR | CY2009 | 20090008270
The applicant requests reconsideration of an earlier request that her military records be corrected to show she elected not to participate in the Survivor Benefit Plan (SBP) and that she be reimbursed for all of the deductions from her retired pay. The applicant provides a DD Form 2656-2 (SBP Termination Request), dated 1 May 2009. Although the applicant's spouse concurred with her SBP election on the DD Form 2656, this form reflects that the applicant made no SBP beneficiary election and...
ARMY | BCMR | CY2012 | 20120022350
However, the date she signed was after the date of her spouse's signature on the Spouse SBP Election Concurrence Statement. By law, her spouse was required to authenticate this form on or after the date she made this election but prior to the date of her retirement. Therefore, in the interest of equity, the applicant's records should be corrected to show she elected not to participate in the SBP with her spouse's concurrence and reimbursing her for any excess SBP premiums paid.