IN THE CASE OF:
BOARD DATE: 16 June 2011
DOCKET NUMBER: AR20100024284
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 military records be corrected to show he elected not to participate in the Survivor Benefit Plan (SBP) and all monthly premiums be refunded.
2. The applicant states:
* At the Fort Belvoir Retirement Service Center (RSC) on 29 December 2004 he and his wife elected not to participate in the SBP
* The retirement counselor failed to forward his SBP election certificate to the proper individuals so he was automatically enrolled in the SBP which he never wanted
* It was never his or his spouse's intention to enroll in the SBP
* He was enrolled due to an error by the RSC
3. The applicant provides his DD Form 2656 (Data for Payment of Retired Personnel).
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. His DD Form 2656, dated 29 December 2004, shows he elected not to participate in the SBP. Section XI (SBP Spouse Concurrence (Required when member is married and elects children only coverage, does not elect full spouse coverage, or declines coverage)) of this DD Form 2656 shows the applicant's spouse concurred with his election on 29 December 2004. However, items 31b [Witness] (Signature), 31c (Date Signed), 33b [Witness] (Signature), and 33c (Date Signed) are blank.
3. On 31 March 2005, he retired in the rank of sergeant first class.
4. He divorced on 29 April 2009. The Property Settlement Agreement shows SBP was awarded to his former spouse.
5. Defense Finance and Accounting Service records show his current SBP election is automatic with full coverage, the default election when a valid election is not received.
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. Elections are made by category, not by name.
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 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the members agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.
DISCUSSION AND CONCLUSIONS:
1. The applicant elected not to participate in the SBP and his spouse concurred with his election on 29 December 2004. However, since the Retirement Services Officer failed to witness her signature and the form on 29 December 2004, the applicant was automatically enrolled in the SBP for spouse coverage.
2. The applicant states it was never his or his spouse's intention to enroll in the SBP; yet, he paid SBP premiums for his spouse from the date of his retirement on 1 April 2005 through the date of his divorce on 29 April 2009. That indicates that despite the error (that is, to obtain a witness's signature) it was his intent to remain in the SBP once he was enrolled.
3. The property settlement agreement has now awarded the SBP to his former spouse. Absent a notarized statement from her that she does not really want the SBP, there is insufficient evidence to warrant granting the requested relief.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X____ ____X____ ____X____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case
are insufficient as a basis for correction of the records of the individual concerned.
_______ _ __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) AR20100024284
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ABCMR Record of Proceedings (cont) AR20100024284
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