IN THE CASE OF:
BOARD DATE: 27 May 2010
DOCKET NUMBER: AR20090020413
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 Survivor Benefit Plan (SBP) coverage for children only instead of spouse.
2. The applicant states that prior to his retirement, he and his spouse elected SBP coverage for children only and completed the necessary forms.
3. The applicant provides a copy of his DD Form 2656 (Data for Payment of Retired Personnel), dated 30 September 2009, and a spouse statement, dated 16 November 2009, in support of his request.
4. On 13 May 2010, the applicant submitted a copy of his retiree account statement, dated 2 December 2009.
CONSIDERATION OF EVIDENCE:
1. The applicant's records show he was appointed as a captain in the Medical Corps of the U.S. Army Reserve and executed an oath of office on 26 May 1987.
2. He married his spouse on 1 June 1988 and he subsequently entered active duty on 8 June 1988. He served continuously in various staff and leadership positions and he was promoted to colonel on 3 June 2006.
3. On 30 September 2009, he completed a DD Form 2656. He placed an "X" in item 26c (Survivor Benefit Plan Election) of section IX indicating that he elected coverage for children only. He also placed an "X" in item 27a (Level of Coverage) indicating he elected coverage based on the full amount.
4. Section XII (SBP Spouse Concurrence) of the DD Form 2656 instructs the applicant that "SBP spouse concurrence is required when a member is married and elects children-only coverage, does not elect full spouse coverage, or declines coverage. The date of the spouse's signature in item 32b (Spouse - Date Signed) MUST NOT be before the date of the member's signature in item 30b (Member - Date Signed)." However, items 32a and 32b contain the signature of the applicant's spouse and the date as "27 September 2009."
5. He was honorably retired on 30 September 2009 and he was placed on the Retired List on 1 October 2009. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed over 21 years of creditable active service.
6. His retiree account statement, dated 2 December 2009, shows an SBP deduction of $297.31 for spouse coverage. Additionally, the remarks block shows he has spouse-only coverage.
7. He submitted a statement, dated 16 November 2009, authored by his spouse, wherein she states they mutually decided to elect coverage for their children and that she declined spouse coverage. She signed the form and had it notarized as instructed by the Retirement Services Office (RSO) counselor at the transition center and she was told her signature must be prior to her husband's signature.
8. 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.
9. 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 contends that his records should be corrected to show he elected to participate in the SBP for children-only coverage.
2. The evidence of record shows the applicant submitted a DD Form 2656 wherein he elected, in the presence of an RSO counselor, to participate in the SBP children-only coverage. However, by law, his spouse was required to authenticate this form on or after the date he made this election, but prior to the date of his retirement. The spouse's concurrence statement shows she concurred with his decision prior to the date he made that decision.
3. When officials at the Defense Finance and Accounting Service (DFAS) received the form, they determined it was invalid since her signature preceded his. Therefore, his SBP coverage defaulted to the spouse coverage. Shortly after he retired, he discovered the error on his retiree account statement.
4. It is clear that his intent was to participate in the SBP for children-only coverage. Although the SBP form clearly shows her signature must be on or after his and prior to his retirement, it appears the RSO counselor failed to counsel the applicant and his spouse properly.
5. In the interest of equity, his records should be corrected to show he elected to participate in the SBP for children-only coverage. Furthermore, since the spouse has a vested interest in the SBP benefit, the requirement for her to concur with the applicant's election to participate in the SBP for children-only coverage is satisfied with the submission of the statement, dated 16 November 2009, electing concurrence with the applicant's decision.
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 the applicant accurately completed the DD Form 2656 on 30 September 2009, electing to participate in the SBP for children-only coverage and that his spouse concurred with his decision on the same date;
b. showing DFAS timely received and processed the DD Form 2656 with the spouse's concurrence with the applicant's SBP election; and
c. reimbursing any premiums already overpaid by the applicant 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) AR20090020413
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ABCMR Record of Proceedings (cont) AR20090020413
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