IN THE CASE OF:
BOARD DATE: 28 June 2011
DOCKET NUMBER: AR20100029388
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 his records to show he elected not to enroll in the Survivor Benefit Plan (SBP).
2. The applicant states when he completed the DD Form 2656 (Data for Payment of Retired Personnel), "they did not know which box I selected so they put me in automatically." He did not want to be in the SBP. He put a check mark with a line through it in item 26g (I elect not to participate in SBP) of the DD Form 2656 and "they did not know if I wanted it or not."
3. The applicant provides a copy of the DD Form 2656.
CONSIDERATION OF EVIDENCE:
1. The applicants records show he enlisted in the Kentucky Army National Guard on 24 September 2001 and held military occupational specialty 13M (MLRS Crewmember). He attained the rank/grade of staff sergeant (SSG)/E-6. He married his spouse on 15 November 2003.
2. He was ordered to active duty on 17 November 2004 and subsequently served in Iraq from 25 January 2005 to 15 January 2006. He was honorably released from active duty on 16 February 2006.
3. On 20 May 2009, he underwent a physical evaluation board that recommended placing him on the temporary disability retired list (TDRL) by reason of physical disability.
4. On 18 June 2009, the applicant completed a DD Form 2656. He stated that he was married; however, he appears to have a placed a check mark with a line through it in item 26g and he also placed an "x" in the block that states "I do not have eligible dependents under the plan." He authenticated this form by placing his signature and date in item 30a and 30b.
5. Section XII (SBP Spouse Concurrence) [Required when 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 32.b MUST NOT be before the date of the member's signature in item 30b, above. The spouse's signature MUST be notarized] of the DD Form 2656 is neither signed by his spouse to indicate her concurrence or non-concurrence with his election nor by a witness and/or retirement services officer.
6. He was honorably retired and placed on the TDRL in his retired rank/grade of SSG/E-6 on 13 July 2009 by reason of temporary disability.
7. His pay records at the Defense Finance and Accounting Service (DFAS) show his SBP coverage defaulted to spouse coverage.
8. 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.
9. Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouses written concurrence for a retiring members election that provides less than the maximum spouse coverage.
10. 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 spouses 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 he retired on 13 July 2009 by reason of temporary disability. Prior to his retirement, he completed a DD Form 2656 wherein he stated that he was married; however, he appears to have elected not to participate in the SBP and indicated that he did not have eligible dependents under the plan. However, there is no evidence his spouse concurred or non-concurred with his election. When DFAS officials received this form, they appear to have declared it legally invalid since it was not authenticated by his spouse. This resulted in his election defaulting to spouse coverage as a matter of law.
2. Section XII of the DD Form 2656 is clear: a spouse's concurrence is required when a member is married and declines coverage. The date of the spouse's signature must not be before the date of the member's signature and the spouse's signature must be notarized. By law, his spouse was required to authenticate this form on or after the date he made this election but prior to the date of retirement. His spouse did not do so.
3. Retirees have a 1-year period, beginning on the second anniversary of the date on which their retired pay started to withdraw from SBP by submitting the appropriate request to DFAS - Retired Pay. For the applicant, this would be during the period 13 July 2011 through 12 July 2012. The spouses concurrence is required, if the member is married at the time. No premiums will be refunded to those who opt to disenroll. In view of the foregoing evidence, there is insufficient evidence to grant him 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) AR20100029388
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20100029388
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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