IN THE CASE OF:	

		BOARD DATE:	  16 December 2010

		DOCKET NUMBER:  AR20100016366 


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 6 May 2010.  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 she declined SBP coverage for her spouse when she retired.  Her husband's signature on the DD Form 2656 (Data for Payment of Retired Personnel) was notarized but the date of his signature was inadvertently left blank.  Due to this oversight, the SBP deduction was automatically deducted from her retirement pay.  

3.  The applicant provides her retiree account statement and a DD Form 2656.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show she married her spouse, Lawrence, on 19 April 1974.  With prior enlisted service in the U.S. Army Reserve (USAR), she was appointed as a first lieutenant in the USAR on 24 January 1980.  She subsequently served in various staff and leadership positions and attained the rank/grade of major/O-4.

2.  On 30 October 1996, by memorandum, the U.S. Army Reserve Personnel Center issued her a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This memorandum notified her she had completed the required years of service and would be eligible for retired pay upon application at age 60.  
3.  Enclosed with this letter was a DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate) which notified her she was entitled to participate in the Reserve Component SBP.  On 21 July 1997, she signed and dated this form and elected to defer her election for survivor benefit coverage until she applied for retired pay at age 60.  Her spouse also signed and dated this form on 21 July 1997 acknowledging, should she die before age 60, he would not be entitled to benefits. 

4.  On 30 March 2010, she submitted a DD Form 2656 wherein she elected, in the presence of a witness, not to participate in the SBP.  She authenticated her election by signing and dating the form in the appropriate block.  Her spouse also signed this form and had his signature notarized.  The notary authenticated her spouse's signature by signing the form indicating he witnessed her spouse sign the form on 30 March 2010.  The date next to her spouse's signature was left blank.  Although the form was signed and submitted properly by the applicant and her spouse concurred with the election, since the date next to her spouse's signature was left blank, her SBP coverage defaulted to spouse coverage. 

5.  The applicant provides her retiree account statement wherein it shows she has SBP coverage for spouse only at the monthly cost of $23.63.

6.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

7.  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 (and participate in SBP), to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  

8.  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 evidence of record shows that subsequent to receiving her 20-year letter, the applicant elected Option A wherein she declined enrollment at that time and deferred her SBP election to age 60.  Her spouse concurred with that decision in writing.

2.  The evidence of record shows she retired on 6 May 2010, at age 60.  She submitted a DD Form 2656 on 30 March 2010 wherein she elected, in the presence of a witness, not to participate in the SBP.  Her spouse concurred with this election and authenticated this election by signing this form and having his signature notarized.  However, the date next to her spouse's signature was left blank which resulted in her election defaulting to spouse coverage as a matter of law. 

3.  It is clear that the applicant's 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 her spouse failed to list the date when he signed the form, his signature was notarized on 30 March 2010.

4.  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 on 30 March 2010.

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 30 March 2010 electing not to participate in the SBP and her spouse concurred with her decision on 30 March 2010;

	b.  showing the Defense Finance and Accounting Service timely received and processed the DD Form 2656 with the spouse's properly-prepared concurrence with the applicant's SBP declination; 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)                                         AR20100016366



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ABCMR Record of Proceedings (cont)                                         AR20100016366



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