IN THE CASE OF:
BOARD DATE: 27 January 2011
DOCKET NUMBER: AR20100018277
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 elected not to participate in the SBP and he indicated this on his DD Form 2656 (Data for Payment of Retired Pay).
3. The applicant provides a copy of his DD Form 2656.
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 24 May 1950 and he was serving in the pay grade of E-6 in the Nevada Army National Guard (NVARNG) on 3 January 1995 when he was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).
2. On 27 June 1996, he submitted a request to be transferred to the Retired Reserve and on 29 June 1996 he was transferred to the Retired Reserve
3. On 5 February 2010, he completed a DD Form 2656 (April 2006 edition) in which he declined participation in the SBP. His spouse concurred with the election and a witness signed the form.
4. The applicant began receiving his retired pay effective 24 May 2010 and he was enrolled in the SBP with full spouse coverage due to having submitted an outdated DD Form 2656 that did not contain a notarization of the spouses signature. He submitted his application to this Board on 29 June 2010.
5. The current DD Form 2656 dated April 2009 requires that when a spouses signature is required, the form must be signed by a notary public official in order to be deemed a valid election.
6. In the processing of this case a staff member of the Board contacted the applicant and informed the applicant that the wifes election needed to be notarized. Accordingly, his wife provided a notarized declination of SBP.
7. Public Law 99-145, enacted on 8 November 1985, but effective 1 March 1986, required a spouses written concurrence for a retiring members election that provided less than maximum spouse coverage.
8. Title 10, United States Code, Section 1448 provides, in pertinent part, that effective 1 March 1986, a married member is enrolled with spouse coverage on full retired pay at the time of retirement unless that spouse has concurred in writing to another election requested by the member pursuant to Department of Defense Financial Management Regulation, Volume 7B, Chapter 43. When the spouses concurrence is required, the signature indicating concurrence must be corroborated by one or more witnesses.
DISCUSSION AND CONCLUSIONS:
1. The evidence shows the applicant applied for non-regular retirement in 2010 and in doing so he completed a DD Form 2656 (April 2006 edition) which required a witness to verify a spouses concurrence.
2. However, the form in effect at the time the applicant made his election was a 2009 edition of the DD Form 2656 which required that the spouses signature be notarized. Accordingly, the Defense Finance and Accounting Service deemed his election invalid.
3. Therefore, it is apparent that the applicant was not properly advised or provided the appropriate form at the time he made his SBP election and as a result his desire not to participate in the SBP was ignored. It is also not reasonable to expect him to have known that the form he was provided was not the proper edition.
4. It is also apparent that the applicants election was made with the intent to decline participation in the SBP and that he completed the form that he was provided. However, through no fault of the applicant he was provided the wrong form and as a result his election became void.
5. Accordingly, it would be in the interest of justice to correct his records to show that his SBP election was deemed to be a valid election and that all SBP premiums deducted from his pay be returned to him.
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 showing that his SBP election of 5 February 2010 was properly made and deemed to be a valid election not to participate in the SBP and that all premiums deducted to date be refunded to the applicant.
__________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) AR20100018277
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ABCMR Record of Proceedings (cont) AR20100018277
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