IN THE CASE OF:	

		BOARD DATE:	  9 June 2011

		DOCKET NUMBER:  AR20100018920 


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 his Survivor Benefit Plan (SBP) coverage and reimbursement of all paid premiums.

2.  He states he and his wife completed a DD Form 2656 (Data for Payment of Retired Personnel) indicating his desire not to participate in the SBP and signed the form in front of a notary public during his pre-retirement out-processing.  On the date of his final out-processing he attempted to submit the DD Form 2656 to the personnel office.  He was told that since he was declining SBP participation with his wife's notarized consent, he did not need to submit the form.  As a result, he kept the form and completed out-processing.

3.  He contends that upon receipt of his first retirement check, he noticed a deduction for SBP spouse coverage.  He contacted the out-processing office and was informed that there was nothing that they could do to resolve the matter.  He was advised that he could either submit an application to the Army Board for Correction of Military Records (ABCMR) or wait 2 years and then request to terminate SBP.

4.  He provides the following documents:

* retirement orders
* notarized DD Form 2656
* DD Form 214 (Certificate of Release or Discharge from Active Duty)


CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 6 August 1987 and served continuously through a series of reenlistments until he ultimately retired on 31 May 2010 in the rank/pay grade of master sergeant/E-8 with 22 years, 9 months, and 25 days of creditable active duty service.  He married his spouse J____ on 26 December 2007.

2.  On 30 March 2010, he completed a DD Form 2656.  He placed an "X" in item 26g of section IX (SBP Election) indicating he had eligible dependents under the plan and elected not to participate in the SBP.  He authenticated this form by placing his signature in the appropriate place.  His spouse J____ authenticated this form by placing her signature in the appropriate block on the same date and a notary public also authenticated this form by placing her signature and date in the appropriate blocks and embossing the form with her seal.

3.  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 MUST NOT be before the date of the member's signature in item 30b."

4.  His Retiree Account Statement shows he currently has SBP spouse coverage based on the full amount.

5.  The Defense Finance and Accounting Services (DFAS) has no record of the applicant either accepting or declining SBP coverage.

6.  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.

7.  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.

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 prior to his retirement on 31 May 2010, the applicant and his wife elected to decline participation in the SBP with a notarized DD Form 2656, dated 30 March 2010.

2.  It appears his DD Form 2656 was not accepted during out-processing and forwarded to DFAS for processing and inclusion in his military pay records.  Accordingly, DFAS automatically initiated premium deductions for SBP spouse coverage in the full amount.

3.  Retirees normally 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.

4.  However, it appears the applicant was not properly counseled.  It is clear his intent was not to participate in the SBP as evidenced by the fact that he completed and authenticated the SBP form electing not to participate in SBP and his spouse concurred.  Although he and his spouse made the election before his retirement, it appears the Retirement Services Office counselor also failed to inform DFAS of his decision to decline participation.

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

BOARD VOTE:

____X___  ____X___  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 (2 months prior to the date he retired) electing not to participate in SBP and his spouse concurred with his decision on 30 March 2010 and it was properly notarized;

	b.  showing DFAS timely received and processed the appropriate form; and

	c.  reimbursing the applicant premiums that were already paid and canceling any debt 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)                                         AR20100018920



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ABCMR Record of Proceedings (cont)                                         AR20100018920



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