BOARD DATE: 17 January 2012
DOCKET NUMBER: AR20110011049
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). He also requests a refund of all SBP premiums deducted from his retired pay beginning January 2010.
2. He states he elected not to participate in the SBP on 19 December 2009. His spouse also concurred with his decision; however, when he began receiving retired pay in January 2010 he noticed SBP premiums were being deducted.
3. He states he contacted the Defense Finance and Accounting Service (DFAS) offices in Kentucky and Ohio to stop the erroneous deductions but was informed that item 32b (Date) of the DD Form 2656 (Data for Payment of Retired Personnel) did not contain a date and, therefore, the form was invalid.
4. He provides copies of:
* A DD Form 1883 (SBP Election Certificate)
* A DD Form 2656
* His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 23 January 1950. On 15 October 1994, after completing 22 years, 4 months, and 26 days of total service, he was honorably discharged from the Colorado Army National Guard and assigned to the U.S. Army Reserve Control Group (Retired).
2. He provided a copy of a DD Form 1883, dated 23 October 1994. This document shows in Section II (Marital, Dependency, and Election Status) that he elected None and to defer the SBP under Option A (Defer). A signed statement shows his spouse concurred with his election not to participate in the SBP.
3. On 19 December 2009, during his retirement processing, the applicant completed a DD Form 2656, in which he elected Not to Participate in the SBP. Section XI (Certification), items 30a (Signature) and 30b (Date Signed), shows the applicant signed the form on 19 December 2009. The form was also signed by a witness on 19 December 2009.
4. Section XII (Certification) of the DD Form 2656 shows his spouse concurred with his election by signing item 32a (Signature); however, item 32b does not contain a date. Item 33 (Notary Witness) was signed on 19 December 2009 by the same witness as in Section XI of the form.
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 95-397, the Reserve Component SBP (RCSBP), enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60. Three options are available: (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member's 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.
7. Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouses written concurrence for a retiring members election (for the standard SBP) that provided less than maximum spouse coverage.
DISCUSSION AND CONCLUSIONS:
1. The available evidence shows the applicant elected not to participate in the RCSBP in 1994 and again declined to participate in the standard SBP on 19 December 2009. His spouse concurred with his elections during both periods.
2. His DD Form 2656 does not contain a date in item 32b; however, it is reasonable to presume that his spouse did in fact sign the form on 19 December 2009, as that is the date her signature was notarized.
3. Therefore, as a matter of justice, it would be equitable to show his spouse concurred with his election not to participate in the SBP by placing the date
19 December 2009 in item 32b of the DD Form 2656.
4. As a result of this correction, DFAS should refund all SBP premiums deducted from his retired pay beginning January 2010 and terminate all future deductions.
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 showing his spouse dated item 32b of the DD Form 2656 in a timely manner and refunding him all SBP premiums taken from his retired military pay and terminate all future deductions.
_______ _ 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) AR20110011049
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ABCMR Record of Proceedings (cont) AR20110011049
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