IN THE CASE OF:
BOARD DATE: 3 January 2012
DOCKET NUMBER: AR20110004393
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 correction of his records to show he declined Survivor Benefit Plan (SBP) coverage for his spouse and reimbursement of any premiums he has already paid.
2. The applicant states:
* during his retirement out-processing at Fort McPherson, GA, he opted out of the SBP
* his spouse was living in their home in Kentucky and when she received her copy of the paperwork asking for her consent, she did not understand the importance of the document and threw it away
* English is his spouse's second language and she sometimes gets confused
* he assumed his spouse completed and returned the form, but he realized he had a problem when the SBP premium was deducted from his first month's retirement pay
* he understands if the premiums he has already paid cannot be returned to him; however, he and his spouse want all future premiums to stop as soon as possible
3. The applicant provides his DD Form 2656 (Data for Payment of Retired Personnel), dated 10 September 2010, and a notarized Spouse SBP Election Concurrence Statement, dated 15 February 2011.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the U.S. Army Reserve (USAR) on 8 October 1982. He was ordered to active duty for a period of 3 years in an Active Guard Reserve (AGR) status effective 18 August 1986. He remained on active duty in an AGR status through continuous reenlistments.
2. He married on 26 June 1997.
3. The applicant was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter) on 17 December 2003. In the notification he was advised that Public Law 106-398, dated 30 October 2000, requires that upon receipt of this letter, a qualified Reserve Component (RC) member who is married will automatically be enrolled in the RCSBP under option C for spouse and child(ren) coverage based on full retired pay unless spouse concurrence is provided to allow for election of lesser or no coverage.
4. On 9 September 2010, the applicant completed a DD Form 2656 electing option G (I elect not to participate in SBP) and indicating he did have eligible dependents under the plan. He signed the form; however, his spouse did not complete section XII (SBP Spouse Concurrence) of the form which is required when the Soldier is married and elects child(ren) only coverage, does not elect full spouse coverage, or declines coverage.
5. The applicant retired honorably on 30 November 2010 by reason of sufficient active duty service for retirement. He completed 24 years, 2 months, and 23 days of active duty service. As such, he was afforded the same SBP options as other active duty retiring members.
6. The applicant submits a notarized Spouse SBP Election Concurrence Statement, dated 15 February 2011, signed by his spouse concurring with his election to decline SBP coverage.
7. Public Law 92-425, enacted 21 September 1972, established SBP. SBP 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. An SBP election to not participate in SBP (with the spouse's concurrence) must be made before the first day for which he or she is eligible to receive retired pay.
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. 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. An RC member serving on continuous active duty in the AGR Program who retires by reason of sufficient active service for retirement is managed administratively in regard to SBP the same as an active duty Soldier in the Regular Army. As a result, standard SBP provisions apply to the applicant in lieu of RCSBP provisions.
2. The available evidence shows the applicant had no intention of participating in SBP. His DD Form 2656 shows he elected not to participate in SBP and had his spouse completed the SBP spouse concurrence portion of the form in a timely manner, he would not be enrolled in SBP and no premiums would have been deducted from his retired pay.
3. The applicant retired from active duty service on 30 November 2010. His first payment for retired pay would have been on or about 1 January 2011. When he discovered that SBP premiums were deducted from his retired pay, he took immediate action to submit a notarized Spouse SBP Election Concurrence Statement showing his spouse concurred with his decision to decline participation.
4. In view of the applicant's immediate action to correct his SBP declination, it would be appropriate to correct his records to show his spouse concurred with his decision to decline participation prior to the effective date of his retirement and to reimburse him for any SBP premiums previously collected.
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. amending his DD Form 2656 to show he declined participation in SBP with a valid spousal concurrence on 10 September 2010 and
b. directing the Defense Finance and Accounting Service to 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) AR20110004393
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