IN THE CASE OF:	  

		BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20100007522 


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, in effect, cancellation of his participation in the Survivor Benefit Plan (SBP).

2.  The applicant states that he completed a DD Form 2656 (Data for Payment of Retired Personnel) and indicated that he did not elect to participate in the SBP.  He signed the document, his spouse was present and aware that he declined to participate in the SBP, a witness and notary public signed the document; however, he was unaware his spouse had not signed the document.  He requests correction of this matter and reimbursement of the SBP premiums that have been deducted from his retired pay.

3.  The applicant provides a copy of a DD Form 2656 in support of his request.

CONSIDERATION OF EVIDENCE:

1.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant enlisted in the Regular Army on 10 March 2005, he was honorably retired based on permanent disability on 27 December 2009, and placed on the retired list.  At the time he had completed 4 years, 9 months, and 18 days of net active service and 1 year, 1 month, and 29 days overseas in Iraq.

2.  In support of his application, the applicant provides a DD Form 2656 that shows in:

   a.  Section VIII (Dependency Information), item 22 (Spouse), that the applicant was married to Nora D. G----- and had no dependent children;

   b.  Section IX (Survivor Benefit Plan (SBP) Election), item 26 (Beneficiary Category(ies)), that he elected not to participate in SBP and he also acknowledged he had an eligible dependent;

   c.  Section XI (Certification), item 30 (Member), in pertinent part, "Also, I have been counseled that I can terminate SBP participation, with my spouse's written concurrence, within 1 year after the second anniversary of commencement of retired pay.  However, if I exercise my option to terminate the SBP, future participation is barred."  It also shows the applicant and an Army SBP counselor each affixed their signature on the document on 27 October 2009; and

   d.  Section XII (SBP Spouse Concurrence), "(Required when member is married and elects child(ren) only coverage, does not elect full spouse coverage, or declines coverage.  The date of the spouse's signature in item 32.b MUST NOT be before the date of the member's signature in item 30.b, above.)  The spouse's signature MUST be notarized."

       (1)  Item 32 (Spouse) states, "I hereby concur with the Survivor Benefit Plan election made by my spouse.  I have received information that explains the options available and the effects of those options.  I know that retired pay stops on the day the retiree dies.  I have signed this statement of my free will."  This item also shows that Nora D. G----- signed the document in item 32a on
27 October 2009 (item 32b).

       (2)  Item 33 (Notary Witness) shows Mr. Michael J. R------, Notary Public, certified that Nora D. G----- personally appeared before him on 27 October 2009, provided him satisfactory evidence of identification (ID), which were her Texas Drivers License and Military ID, that were those of the person whose name is signed in item 32a, and that the document was signed in his presence.

3.  In connection with the processing of this case, the General Processing Branch, Defense Finance and Accounting Service (DFAS), Cleveland, Ohio, was asked to verify information relevant to the applicant's SBP election, coverage, and participation:

   a.  DFAS verified the applicant completed a DD Form 2656 on 27 October 2009; however, his original election was invalid because the document did not have his spouse's signature.  As a result, the applicant's SBP election automatically defaulted to full SBP coverage for his spouse.

   b.  DFAS also provided a copy of the applicant's DD Form 2656 that is an exact copy of the DD Form 2656 described in paragraph 2, above, except for items 32a and 32b, which are absent the spouse's signature and date signed.

4.  Public Law 92-425, the Survivor Benefit Plan, 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.  

5.  Section 1448, Title 10, United States Code, provides that if a person makes an election not to participate in the SBP, the person's spouse shall be notified of that election.  Spousal concurrence is needed only when a married person elects to provide an annuity for his spouse at less than the maximum level or to provide an annuity for a dependent child but not for his spouse.

6.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a 1-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from SBP.  The spouse's concurrence is required.  No premiums will be refunded to those who opt to disenroll.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the DD Form 2656 that he completed on 27 October 2009 where he declined SBP spouse coverage should be honored and the SBP premiums refunded because both he and his spouse were present when he signed the document in the presence of an Army SBP counselor and notary public, respectively.

2.  The evidence of record confirms that on 27 October 2009, in his application for retired pay, the applicant declined to participate in SBP.  In addition, the applicant signed his application in the presence of an Army SBP counselor:

	a.  On that same date, a notary public authenticated the DD Form 2656 to attest to the spouse's concurrence with the applicant's decision not to participate in SBP.  However, despite the fact that the notary signed the document and sealed the form, the DD Form 2656 on file at DFAS is absent the spouse's signature.  Consequently, the applicant's SBP election correctly defaulted to automatic spouse coverage.

	b.  The evidence shows that, for some period of time, a DD Form 2656 existed with a completed notary block that anyone, not just the applicant's spouse, could have signed concurring in the declination of SBP coverage.

	c.  The DD Form 2656 that the applicant provides in support of his request shows the spouse's signature.  However, the grossly negligent act by the notary calls into question the validity of the spouse's concurrence and this copy of the document.  Thus, it is concluded the copy of the DD Form 2656 that the applicant now provides should not serve as the basis for extinguishing a property interest belonging to the applicant's spouse.

	d.  While it is likely that the applicant's spouse did concur with the applicant's decision to decline SBP coverage, as a matter of justice, it would be prudent to obtain a new properly notarized statement capturing the spouse's understanding and concurrence with the applicant's decision to decline SBP coverage.

	e.  Absent a signed and notarized document from the applicant's spouse, the Board will not take any action to extinguish her property interest in the applicant's SBP.  Therefore, in view of the foregoing, relief cannot be granted in this case, at this time.

3.  The applicant is advised that he and his spouse may contact the nearest Retirement Services Officer (RSO) for additional information and assistance regarding this matter.  A listing of RSOs by country, state, and installation is available on the Internet at:  http://www.armyg1.army.mil/RSO/rso.asp

4.  The applicant is also advised that retirees have a 1-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from SBP.  However, the spouse's concurrence is required and no premiums will be refunded to those who opt to disenroll.  The applicant may obtain a copy of a DD Form 2656-2 (SBP Termination Request) from the Official Department of Defense Issuances (Forms Management Program) website at: http://www.dtic.mil/whs/directives/infomgt/forms/formsprogram.htm.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X____  ___X____  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________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)                                         AR20100007522



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ABCMR Record of Proceedings (cont)                                         AR20100007522



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