IN THE CASE OF:	  

		BOARD DATE:	  14 April 2011

		DOCKET NUMBER:  AR20110004758 


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 elected not to participate in the Survivor Benefit Plan (SBP) and reimbursement of any premiums collected to date.

2.  The applicant states he elected not participate in the SBP; however, his Retiree Account Statement (RAS) shows he is enrolled in the SBP for spouse coverage.  His spouse signed the form and her signature was notarized.  His spouse, also a service member, did the same exact action at the time; yet, her RAS does not show SBP while his does.  During out-processing in Vicenza, Italy, he and his wife were asked to have his spouse sign the election form and return it to the transition center.  They did as instructed.  He should not be penalized for what appears to be an error committed by the transition center. 

3.  The applicant provides:

* His and his spouse's DD Forms 2656 (Data for Payment of Retired Personnel)
* His April 2011 and his spouse's March 2011 RAS
* Wife's notarized statement

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 15 February 1989 and held military occupational specialty 25U (Signal Support Systems Specialist).  He served through multiple reenlistments and attained the rank/grade of sergeant first class (SFC)/E-7.  His records show he married his spouse, Patricia, on 14 January 1995.

2.  On 26 October 2010, and in anticipation of his upcoming retirement, the applicant completed a DD Form 2656.  He placed an "X" in item 26g (Survivor Benefit Plan Election) of Section IX, indicating that he did not have eligible dependents under the plan and elected not to participate in the SBP.  

3.  Section XII (SBP Spouse Concurrence) of the DD Form 2656 instructs the applicant that "SBP spouse concurrence is required when a 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 32b (Spouse-Date Signed) MUST NOT be before the date of the member's signature in item 30b (Member-Date Signed)."  

	a.  Item 32b (Date Signed) shows his spouse signed the form concurring with his election on 28 September 2010, nearly a month before he made the election. 

	b.  A Retirement Services Officer (RSO)/SBP counselor also authenticated this form by placing her signature and date in the appropriate blocks.  The date is also shown as 28 September 2010, nearly a month before he made the election.

4.  The applicant retired on 28 February 2011. 

5.  The applicant's RAS, dated 9 March 2011 (effective 1 April 2011), shows an SBP deduction of $142.94 for spouse coverage.  Additionally, the SBP coverage block of the RAS shows he has spouse only coverage. 

6.  He submitted a notarized statement, signed by his spouse on 4 April 2011, concurring with his election not to participate in the SBP.

7.  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.

8.  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.

9.  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.  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 applicant contends that his records should be corrected to show he elected not to participate in the SBP and he should be reimbursed any premiums he paid.

2.  The evidence of record shows the applicant submitted a DD Form 2656 wherein he elected, in the presence of an RSO counselor, not to participate in the SBP.  However, 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 signed the form nearly a month before he made the election.  Therefore, his SBP coverage defaulted to spouse coverage.  Shortly after he retired, he discovered the error on his RAS. 

3.  It is clear that the applicant's intent was not to participate in the SBP.   Although his spouse failed to date the DD Form 2656 on or after the date he made this election but prior to the date of his retirement, the RSO made the same mistake.  

4.  In the interest of equity, the applicant's records should be corrected to show he elected not to participate in the SBP.  Furthermore, since the spouse has a vested interest in the SBP benefit, the requirement for her to concur with the applicant's election not to participate in the SBP is satisfied with the submission of the notarized statement, dated 4 April 2011, electing to concur with the applicant's decision.

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 the applicant accurately completed the DD Form 2656, on 26 October 2010, electing not to participate in the SBP and that his spouse concurred with his decision, on 28 October 2010;

	b.  showing the Defense Finance and Accounting Service timely received and processed the DD Form 2656 with the spouse's concurrence with the applicant's SBP election; and

	c.  reimbursing any premiums already paid by the applicant as a result of this correction.



      _______ _   _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)                                         AR20110004758



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ABCMR Record of Proceedings (cont)                                         AR20110004758



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