IN THE CASE OF:	 

		BOARD DATE:	    18 November 2010

		DOCKET NUMBER:  AR20100011853 


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 her military records be corrected to show she declined enrollment in the Survivor Benefit Plan (SBP).

2.  The applicant states she and her husband did not want to participate in the SBP and they made such an election on the DD Form 2656 (Data for Payment of Retired Personnel) (version dated April 2006) that was sent to them by the Human Resources Command in St. Louis, Missouri. However, the Defense Finance and Accounting Service (DFAS) enrolled her in the SBP because she had used the wrong version of the DD Form 2656 and it was not notarized.  She further states the form she signed did not require notarization; however, the new form does.  She goes on to state that she is being penalized for a mistake that was not her fault and desires to have her participation in the SBP voided and all funds deducted for that program returned to her.

3.  The applicant provides a copy of her:

* Retiree Account Statement (RAS)
* DD Form 2656 (April 2006)
* Direct Deposit Sign-Up Form
* Chronological Statement of Retirement Points



CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 17 February 1950.  She enlisted in the Air Force on 20 November 1970 and served as a medical specialist until she was honorably released from active duty on 19 November 1974.  

2.  She enlisted in the Army National Guard on 22 August 1975 and served until she was honorably discharged on 21 August 1982.

3.  On 22 August 1982, she was commissioned as a United States Army Reserve (USAR) second lieutenant in the Army Nurse Corps.  She continued to serve as a medical surgical nurse at a USAR Hospital in Fargo, North Dakota and she was promoted to the rank of captain on 6 July 1990.  She deployed to Southwest Asia in support of Operation Desert Shield/Storm from 15 January to 12 March 1991.

4.  On 28 March 1992, she was issued her Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

5.  On 16 September 1992, the applicant was transferred to the Retired Reserve.

6.  On 25 July 2009, the applicant and her spouse, who is also retired from the USAR, completed a DD Form 2656 (April 2006 version) in which they elected to decline participation in the SBP.  Their signatures were witnessed on the same date.

7.  On 17 February 2010, the applicant was transferred to the Army of the United States (AUS) Retired List in the Retired grade of captain.

8.  In the processing of this case a staff member of the Board contacted officials at DFAS to determine what election DFAS had received from the applicant.  Officials at DFAS indicated the applicant’s SBP election was received on an obsolete form and it was not notarized in accordance with the laws in effect at the time.  Accordingly, the applicant was enrolled in the SBP under the spouse only option.

9.  A staff member of the Board also contacted the applicant’s spouse regarding the notarized election form and he informed the staff member that he and his spouse (the applicant) did decline participation in the SBP and that they did so as well when he retired from the USAR in February 2008.  He also stated that when he retired and they declined SBP, notarization of the election form was not required and so nothing was thought to be out of the ordinary.  He also stated that he would provide the Board a notarized statement attesting to his declination of SBP on 25 July 2009.  His notarized statement concurring with his spouse’s election not to participate in the SBP was received by the staff of the Board on 8 November 2010. 

10.  Department of Defense Instruction 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 E3.5.1 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 retirement pay on 25 July 2009, she indicated she declined SBP.  The DD Form 2656 is signed by the applicant and her spouse, concurring with the election.  However, her spouse's signature was not notarized and it was done on an obsolete form provided in her retirement packet.

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.  This change was made over 1 year before the applicant made her SBP election on 25 July 2009.  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 for more than 7 years.  The DD Form 2656 she and her spouse completed on 25 July 2009 was the April 2006 version of the form provided to her in her retirement packet and certainly was not something so outdated 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.  Additionally, only a year prior, her husband had retired from the USAR and the same form was used and was not notarized.  Accordingly, it appears that the administrative error that was made in this case was through no fault of the applicant and the applicant should not be unjustly penalized.

5.  Therefore, as a matter of equity, it would be appropriate to change the applicant's records to show on 25 July 2009 she declined participation in the SBP, her spouse 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 changing the DD Form 2656 the applicant and her spouse completed on 25 July 2009 to show her spouse's signature in block 30 is notarized.



2.  DFAS should make any adjustments required based on the above correction and return any premiums previously collected.




      _______ _   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)                                         AR20100011853



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ABCMR Record of Proceedings (cont)                                         AR20100011853



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