IN THE CASE OF:	  

		BOARD DATE:	  13 April 2011

		DOCKET NUMBER:  AR20100021362 


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 his records be corrected to show both he and his wife declined enrollment in the Survivor Benefit Plan (SBP).  He also requests that all SBP deductions from his retired pay be refunded to him.

2.  The applicant states that on or about 21 July 2008 he completed a DD Form 2656 (Data for Payment of Retired Personnel) at the Army Retirement Services Office (RSO) at Fort Irwin, CA declining enrollment in the SBP.  The RSO sent his wife a "Spouse Concurrence Letter Decline SBP," dated 21 July 2008, and a Spouse SBP Election Concurrence Statement via FedEx.  He states he returned his wife's signed documents on 25 July 2008.

3.  He contacted the Defense Finance and Accounting Service (DFAS) on 
12 January 2009 because SBP premiums were being deducted from his retired pay.  He contacted DFAS two more times and on the third attempt, 3 March 2009, he was told the DD Form 2656 he signed in July 2008 was not in his record.  He was told he would have to submit an application to the Army Board for Correction of Military Records (ABCMR) to correct the error.  Subsequent attempts to recover the original DD Form 2656 were unsuccessful.

4.  The applicant provides:

* Spouse Concurrence Letter Decline SBP, dated 21 July 2008
* Spouse SBP Election Concurrence Statement, dated 24 July 2008


CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed a second lieutenant in the U.S. Army Reserve on 9 August 1996 and immediately ordered to active duty.  He had previously completed 13 years, 10 months, and 18 days of active service.

2.  According to the applicant, he completed a DD Form 2656 on or about 
21 July 2008 at the RSO, Fort Irwin, CA.  At this time the RSO FedEx'd a Spouse Concurrence Letter Decline SBP and a Spouse SBP Election Concurrence Statement to his wife in Costa Mesa, CA.  The DD Form 2656 he completed on or about 21 July 2008 is not available for review.

3.  The Spouse Concurrence Letter Decline SBP, dated 21 July 2008, specifically notified her that her husband was retiring from the military effective 31 December 2008 and he had elected to decline SBP coverage.  The letter explained the SBP to her and the ramifications of her husband's election.  She was informed she must complete the Spouse SBP Concurrence Statement and return it to the RSO prior to 31 December 2008.  She was also advised that her signature had to be witnessed by a Notary Public.  If she did not concur with his election, failed to return the letter, or failed to have her signature witnessed by a Notary Public her husband would receive automatic SBP coverage based on full retired pay.

4.  On the Spouse SBP Election Concurrence Statement the applicant's wife concurred with his SBP election to decline SBP coverage.  Her signature was witnessed by a Notary Public and dated 24 July 2008.

5.  The applicant completed a second DD Form 2656 wherein he again elected not to participate in SBP.  He signed this second DD Form 2656 on 3 September 2008.

6.  On 31 December 2008, he was retired and placed on the Retired List the following day.  He completed a total of 26 years, 3 months, and 10 days of active service.

7.  In an email, dated 19 January 2011, DFAS stated their files contained the wife's concurrence letter dated 21 July 2008 and his DD Form 2656 dated 
3 September 2008.  DFAS stated the spouse cannot concur with an election that has not been made yet.

8.  Department of Defense Instruction (DODI) 1332.42, in effect at the time, provided the responsibilities and procedures for administering the Survivor Annuity Program:

	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.  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 elections made on or after 1 May 2008.

DISCUSSION AND CONCLUSIONS:

1.  DFAS is correct in that a spouse cannot concur with an election that has not been made.  However, the letter to the spouse, dated 21 July 2008, specifically informed her that her husband had made an election to decline SBP.  The letter to the applicant's wife would not have been sent if he had not already completed a DD Form 2656.

2.  His wife met all the requirements when she completed the Spouse SBP Election Concurrence Statement, including having her signature witnessed by a Notary Public.  

3.  Through some unknown administrative error the applicant's original DD Form 2656 was misplaced.  This is evidenced by the fact that he completed a second form on 3 September 2008.  Both he and his wife clearly showed they did not desire to participate in SBP.

4.  Therefore, as a matter of justice, it would be appropriate to change the applicant's records to show on 21 July 2008 he declined participation in the SBP. His wife's concurrence with that election is a matter of record.  It would also be appropriate to return any SBP premiums previously 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 his DD Form 2656 to show on 21 July 2008 he declined participation in the SBP with a valid spousal concurrence.

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)                                         AR20100021362



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ABCMR Record of Proceedings (cont)                                         AR20100021362



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