IN THE CASE OF:
BOARD DATE: 24 January 2011
DOCKET NUMBER: AR20100024348
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, in effect, correction of her record to show she did not elect to participate in the Survivor Benefit Plan (SBP) and to recoup premiums that have been deducted from her retired pay.
2. The applicant states she declined SBP when she was outprocessing from active duty. She and her husband were counseled that this was a smart decision because they are both retired service members. However, the SBP deductions began and have continued. She attempted to work through an office at Fort Bragg, NC. She was sent a document by mail which she and her husband notarized and returned. They received confirmation by telephone that it was received, but the document was subsequently lost. After several follow-up calls, she learned that her attempt to stop SBP had been denied.
3. The applicant provides a Spouse SBP Election Concurrence Statement signed by her spouse and notarized.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 6 July 1989, serving until her retirement on 30 September 2009. She completed 20 years, 2 months, and 25 days of active service.
2. The record is void of documentation pertaining to the SBP election she made or attempted to make prior to her retirement.
3. During the processing of this case, the Defense Finance and Accounting Service (DFAS) informed an analyst in the Army Review Boards Agency Case Management Division that the applicant's SBP election was invalid because her spouse's concurrence was missing. As a result, she was automatically enrolled in the SBP.
4. The new Spouse SBP Election Concurrence Statement provided by the applicant shows her spouse received information explaining the SBP election she wished to make and the effects of her election. He indicated he concurred with her SBP election and signed the form. The form was notarized on 21 May 2010.
5. Public Law 92-425, the SBP, enacted 21 September 1972, 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.
6. Public Law 99-145, enacted 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.
7. An election to decline to participate in the SBP must be made prior to the effective date of retirement or coverage automatically defaults to full spouse coverage (or child-only coverage, if applicable).
DISCUSSION AND CONCLUSIONS:
1. The evidence of record supports the applicant's request to show she elected not to participate in the SBP and to refund any SBP premiums she has paid.
2. The DFAS has confirmed that her election was invalid because her spouse's concurrence was missing; however, it appears the applicant made a proper election not to participate in the SBP at the time of her outprocessing for retirement. Through no fault of her own her spouse's SBP concurrence statement not to participate in the SBP was not properly processed by her losing station or received by DFAS. The applicant has provided a new notarized statement signed by her spouse indicating he concurs with her decision not to participate in the SBP.
3. In view of the foregoing, it would be appropriate to correct her records to show that she made a valid election with spousal concurrence not to participate in the SBP and to refund any SBP premiums that have been deducted from her retired pay.
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 she made a valid election with spousal concurrence not to participate in the SBP;
b. showing the spousal concurrence was timely received and processed by DFAS; and
c. reimbursing any SBP premiums that have been deducted from her retired pay.
____________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) AR20100024348
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20100024348
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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