IN THE CASE OF:
BOARD DATE: 26 October 2010
DOCKET NUMBER: AR20100008753
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 that his records be corrected to show he elected not to participate in the Survivor Benefit Plan (SBP).
2. The applicant states he and his wife completed a DD Form 2656 (Data for Payment of Retired Personnel), declining to participate in the SBP. After he retired, he discovered the SBP premiums were being deducted from his pay. He contends he was told the reason for the deduction was due to his wife signing and dating the form before him. He explains that his wife signed the form before him because she was not going to attend the briefing with him. Because the applicant and his wife chose to decline coverage, there was a requirement for her to sign in the presence of a notary.
3. The applicant provides a copy of his DD Form 2656 and a copy of his final DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 December 2009.
CONSIDERATION OF EVIDENCE:
1. The applicants records show he was born on 7 June 1966 and initially enlisted in the Army National Guard (ARNG) on 30 November 1983. His records indicate that on 16 December 2003 he received his Notification of Eligibility for Retired Pay at age 60 (known as the 20-year letter).
2. On 14 January 2004, he completed a DD Form 2656-5 (Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate), electing to provide full (spouse only) SBP coverage under option C (Immediate Annuity).
3. A copy of Orders 323-203, issued by Headquarters, Utah National Guard, Office of The Adjutant General, Draper, UT, dated 19 November 2007, shows the applicant was ordered to active duty in an Active Guard Reserve (AGR) status for a period of 3 years.
4. On 24 September 2009, the applicant completed a DD Form 2656 electing not to participate in the SBP. His spouse and a notary signed in items 32a (Spouse) and 33 (Notary Witness) on 16 September 2009. This section of the form indicates that the spouse MUST NOT SIGN the form before the member makes the SBP election and signs the form.
5. A copy of his DD Form 214 for the period ending 31 December 2009 shows he completed 20 years, 5 months, and 2 days of net active service and he was honorably retired under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 12, by reason of sufficient service for retirement.
6. A copy of an email transmission between the staff of the Board and the Defense Finance and Accounting Service (DFAS), dated 19 July 2010, indicates the DD Form 2656, which was completed in September 2009, is invalid due to the sequencing/dates of the signatures.
7. On 27 September 2010, further clarification was obtained from Department of the Army, Retirement Services, pertaining to the precedence between the
DD Form 2656-5 (RCSBP) election and the DD Form 2656 (Data for Payment of Retired Personnel) SBP election. The reply indicated if a Soldier is retired from active duty, the RCSBP election becomes invalid. The Soldier will not pay for any RCSBP coverage received and the RCSBP election has no bearing on the SBP election.
8. Army Regulation 135-180, paragraph 2-1 (Eligibility) provides, in pertinent part, that an applicant must not be entitled to retired pay from the Armed Forces under any other provision of law.
9. 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.
10. Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.
11. Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouses written concurrence for a retiring members election that provides less than the maximum spouse coverage.
DISCUSSION AND CONCLUSIONS:
1. The applicants request to correct his records to show he declined to participate in the SBP was carefully considered and was found to have merit.
2. On 24 September 2009, the applicant completed a DD Form 2656 electing not to participate in the SBP. His spouse concurred with his election and signed
the form on 16 September 2009. His spouse signed the form prior to him, thus making this an invalid election. As a result of this error, his election automatically defaulted to full spouse coverage and DFAS began the collection of the premiums.
3. Because the evidence clearly shows he intended to decline SBP with his wife's concurrence, it would be equitable to correct his DD Form 2656, to show the applicant, witness, applicant's spouse, and the notary all signed and dated the form on 16 September 2009, declining SBP with a valid spousal concurrence resulting in the return of all monies deducted by DFAS from his retired pay since 1 January 2010 for SBP annuity 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. showing the applicant accurately completed the DD Form 2656 on
16 September 2009 electing not to participate in the SBP and that his spouse properly concurred with his decision on 16 September 2009;
b. showing DFAS timely received and processed the DD Form 2656 with the spouse's notarized concurrence with the applicant's SBP election; and
c. reimbursing any premiums already paid 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) AR20100008753
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
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