BOARD DATE:	  30 September 2010

		DOCKET NUMBER:  AR20100009918 


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, correction of her military records to show she declined enrollment in the Survivor Benefit Plan (SBP) and refund of all SBP premiums withdrawn from her retired pay.

2.  The applicant states she elected not to participate in the SBP; however, SBP premium payments were withdrawn from her first retirement pay statement.  She states when she initially completed the form electing to decline SBP coverage, there were no instructions stating that signatures on the form must be notarized.

3.  In March 2008, she states she received her retired pay application in the mail.  She completed the required forms and she returned them by mail almost two years before she reached age 60.  She continues by stating that at no time did a representative from the Defense Finance and Accounting Services (DFAS) notify her of an error in her retired pay application.  When she received her first retired pay statement, she saw SBP costs were deducted from her pay.  Contacting DFAS, she was told her spouse's signature had not been notarized on her DD Form 2656 (April 2006 version) (Data for Payment of Retired Personnel).  She concludes by stating the handwritten dates on this form are also incorrect for she knows she completed it in 2008, not in 2004, as annotated next to her signature.

4.  The applicant provides copies of:

* her DD Form 2656, dated 2 April 2008 
* her DFAS-CL 7220/148 (Retiree Account Statement), as of 1 March 2010
* a letter from the U.S. Army Human Resources Command, St. Louis, MO (HRC-STL), dated 22 July 2009
* HRC-STL Orders P07-908400, dated 22 July 2009 (retirement orders)
* a second DD Form 2656 (April 2009 version), witnessed by a Notary Public on 16 February 2010

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 21 January 1951.  She was commissioned as a second lieutenant in the U.S. Army Reserve (USAR) on 3 December 1971.  She had previously served 1 year, 5 months, and 19 days in an enlisted status on active duty as a member of the USAR.  She then served on active duty as a Reserve commissioned officer until 6 July 1979, when as a captain, she accepted a Regular Army (RA) commission in the Army Nurse Corps.

2.  On 17 October 1981, the applicant resigned her RA commission, accepted a USAR officer commission, and she was honorably released from active duty to the 25th Combat Support Hospital, USAR.  She was issued a DD Form 214 that shows she served on active duty for 9 years, 10 months, and 15 days.

3.  On 4 February 1992, the applicant was notified she had completed the required years of service for eligibility for retired pay upon application at age 60.

4.  The applicant's records maintained in the interactive Personnel Electronic Records Management System (iPERMS) contain a copy of her DD Form 1883 (SBP Election Certificate).  On 24 September 1992, within 20 days of receipt of her retirement eligibility letter, the applicant and her spouse completed this form as follows: 

   a.  Section II (Marital, Dependency, and Election Status) shows the applicant was married and that she did have dependent children.  However, she annotated this form by showing she did not want coverage by checking item 8c (None).
   
   b.  Item 9c is checked showing she elected Option A under the SBP indicating she was deferring her SBP decision until she submitted her retired pay application at age 60.  Her spouse signed and dated this same form on 14 September 1992 indicating he knew and understood the applicant's decision to defer SBP election until her application for retired pay;
   
	c.  Section V (Additional Information) shows this was the applicant's first election under the SBP; and

   d.  Section VI (Signature) shows she signed this form on 24 April 1992 with a witness present who also authenticated this form.
   
5.  The applicant completed a DD Form 2656 upon applying for retired pay as follows:

	a.  She entered her husband's name in item 13, section V (Designation of Beneficiaries for Unpaid Retired Pay);

	b.  Item 22 (Spouse) of section VIII (Dependency Information) shows the spouse's name entered as identified in item 13;

c.  Item 23 (Date of Marriage) was 17 October 1981;

d.  Item 24 (Place of Marriage) was Waynesville, MO;

	e.  Item 26g (I Elect Not to Participate in SBP) of section IX (SBP Election) is checked to show she had eligible dependents under the plan but elected not to participate;

	f.  Item 27 (Level of Coverage) is blank;

	g.  Item 30 (Spouse) of section XI (SBP Spouse Concurrence) is signed by the same person the applicant entered in item 13 as her spouse.  Her spouse dated his signature as 2 April 2008 with no evidence his signature was notarized.  However, as required, a witness did sign and date this form on 2 April 2008; and 

	h.  Item 32 (Member) of section XII shows the applicant signed and dated this form on 2 April "2004."

6.  The applicant turned 60 years of age on 21 January 2010.

7.  By Orders P07-908400, dated 22 July 2009, the applicant was retired and placed on the Army of the United States Retired List in the rank/grade of lieutenant colonel (LTC)/O-5.  The effective date of transfer was 22 January 2010.

8.  On 16 February 2010, the applicant prepared a new DD Form 2656 with the effective date of this form showing "APR 2009."  New to this form from the previous edition of "APR 2006" is item 33 (Notary Witness), where a notary stamp authenticates her spouse's signature as concurring with the SBP election made by his spouse, in effect, the applicant's election not to participate in the SBP.
9.  The applicant's DFAS-CL 7220/148 as of 1 March 2010 shows SBP spouse only coverage at a cost of $190.65 was deducted from her retired pay account.

10.  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 Reserve Component SBP (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.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she declined SBP at the time of her application for retired pay.

2.  At the time the applicant applied for retired pay on or about 2 April 2008, she declined SBP.  The DD Form 2656 is signed by the applicant and her spouse who concurred with the SBP election of no coverage.  However, her 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.  The effective date change was made near the time the applicant made her SBP election with spouse concurrence on 2 April 2008.  However, the date of the new form is April 2009.

4.  At the time the applicant submitted her retired pay information and application, she had not been actively participating in the Reserve.  The DD Form 2656 she and her husband completed on 4 April 2008 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 that on 2 April 2008 she declined participation in the SBP, her husband concurred with this election, and his 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:

	a.  showing the applicant accurately completed the DD Form 2656 on
1 January 2010 electing not to participate in the SBP, that her spouse concurred with her decision on 1 January 2010, and that DFAS timely received and processed the DD Form 2656 with the spouse's notarized concurrence with the applicant's SBP election; and

	b.  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)                                         AR20100009918



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (co