IN THE CASE OF:	  

		BOARD DATE:	  20 October 2010

		DOCKET NUMBER:  AR20100011734 


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 Survivor Benefit Plan (SBP) coverage and reimbursement of all paid premiums since 13 October 2002.  In effect, she requests correction of her records to show, at the time she retired, she elected not to participate in the SBP.

2.  The applicant states when she was temporarily retired, she was rushed through outprocessing.  The DD Form 2656 (Date for Payment of Retired Personnel) was incorrectly dated and let slide.  She and her spouse were divorced in November 2005 with no stipulation to her disability retirement.  She adds that her former spouse died in September 2008.  

3.  The applicant provides the following documents:

* Retiree Account Statement
* DD Form 2656
* Divorce Decree
* Former spouse death certificate

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service in the Regular Army, the applicant's records show she married her spouse, David, on 2 May 1992.

2.  She was appointed as a second lieutenant in the U.S. Army Reserve and entered active duty on 1 November 1992.  She subsequently served in various staff and leadership positions, within and outside continental United States, and attained the rank/grade of captain (CPT)/O-3.

3.  In September 2002, a physical evaluation board (PEB) convened at Fort Lewis, WA, and determined her medical condition prevented her from performing the duties required of her grade and specialty and determined that she was physically unfit.  The PEB recommended placing her on the temporary disability retired list (TDRL).  

4.  On 13 October 2002, the applicant was honorably retired in the rank/grade of CPT/O-3.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued shows she completed a total of 10 years, 1 month, and 12 days of creditable active service. 

5.  On 13 November 2002, she completed a DD Form 2656.  She placed an "X" in item 26g (Survivor Benefit Plan Election) of Section IX, indicating that she had eligible dependents under the plan; however, she elected not to participate in the SBP and authenticated this form by placing her signature in the appropriate place.  Her spouse, David, authenticated this form by placing his signature in the appropriate block on 14 November 2002 and a Retirement Services Officer (RSO)/SBP counselor also authenticated this form by placing her signature and date in the appropriate blocks.

6.  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 child(ren) 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))."  

7.  On 21 November 2005, the applicant and her spouse, David, were divorced.  Their divorce decree is silent regarding the SBP.  However, there is no indication she notified officials at the Defense Finance and Accounting Services (DFAS) of her divorce. 

8.  On 27 September 2007, subsequent to a TDRL PEB, she was removed from the TDRL and on 28 September 2007, she was permanently retired 

9.  On 16 September 2008, the applicant's former spouse, David, died.  However, there is no indication she notified DFAS officials of his death.

10.  Her Retiree Account Statement shows she currently has spouse SBP coverage based on the full amount and that she continues to pay SBP premiums for spouse SBP coverage based on the full amount. 

11.  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.

12.  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.

13.  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.  The effective date of termination is the first day of the first calendar month following the month in which the election is received by the Secretary concerned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests termination of her SBP coverage and reimbursement of all paid premiums since 13 October 2002.  

2.  The evidence of record shows she retired on 13 October 2002 by reason of temporary disability.  She did not complete an SBP election on or prior to the date of her retirement.  Her failure to do so resulted in her election defaulting to spouse coverage as a matter of law.

3.  She submitted a DD Form 2656 on 13 November 2002 wherein she elected, in the presence of an RSO counselor, not to participate in the SBP.  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 retirement.  Her spouse did so, on 14 November 2002.  However, since the SBP election and the subsequent spouse concurrence did not occur prior to the applicant's retirement date, her SBP coverage defaulted to spouse coverage. 



4.  Retirees have a one-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.  She did not do so within the allotted time.

5.  Additionally, she and her spouse were divorced in November 2005.  She did not notify DFAS officials of this divorce.  Accordingly, her SBP premiums continued.   Furthermore, her former spouse died in September 2008.  She again failed to notify DFAS of his death.  Accordingly, her SBP premiums continued. 

6.  It appears the applicant was not properly counseled.  It is clear that her intent was not to participate in the SBP as evidenced by the fact that she completed and authenticated the SBP form electing not to participate in the SBP and her spouse concurred.  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.

7.  In the interest of equity and justice, her records should be corrected to show she elected not to participate in the SBP with her spouse's concurrence prior to the date of her retirement.

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 11 October 2002 (one day prior to the date she retired) electing not to participate in the SBP, that her spouse concurred with her decision on 11 October 2002, and that the Defense Finance and Accounting Service timely received and processed the DD Form 2656 with the spouse's concurrence with the applicant's SBP declination 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)                                         AR20100011734



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ABCMR Record of Proceedings (cont)                                         AR20100011734



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