BOARD DATE: 3 May 2012
DOCKET NUMBER: AR20110012267
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 termination of his Survivor Benefit Plan (SBP) coverage and reimbursement of all paid premiums.
2. He states he and his wife completed a DD Form 2656 (Data for Payment of Retired Personnel) indicating his desire not to participate in the SBP with the assistance of an SBP counselor during his pre-retirement out-processing. Unfortunately, none of them realized the applicant had not signed the form. As a result, the Defense Finance and Accounting Services (DFAS) automatically enrolled him in the SBP with spouse coverage based on the full amount.
3. He contends that when they attempted to send a corrected copy of the DD Form 2656 to DFAS in an effort to terminate SBP enrollment it was rejected because it was received after his official retirement date. He was advised that he could either submit an application to the Army Board for Correction of Military Records (ABCMR) or wait 2 years and then request to terminate SBP.
4. He provides two DD Forms 2656.
CONSIDERATION OF EVIDENCE:
1. The applicant's records show that having prior enlisted service in the U.S. Navy, he enlisted in the Regular Army on 28 February 1995 for the purpose of participating in the Warrant Officer Flight Training Program. On 6 July 1995, he was appointed as a warrant officer and served continuously until he ultimately retired on 31 December 2010 in the rank/pay grade of chief warrant officer four/W-4 with 21 years, 4 months, and 2 days of creditable active duty service. He married his spouse on 6 February 1999.
2. On 21 December 2010, he completed a DD Form 2656. He placed an "X" in item 26g of section IX (SBP Election) indicating he had eligible dependents under the plan and elected not to participate in the SBP. His spouse authenticated this form by placing her signature in the appropriate block on the same date. Item 30a (Member's Signature) of this form is blank. However, items 31a (Witness Name), 31b (Witness' Signature), and 33 (Notary Witness) show the Chief of the Transition Point located at Redstone Arsenal, AL authenticated this form by placing her signature and date in the appropriate blocks and embossing the form with her seal.
3. The applicant provides a copy of the aforementioned DD Form 2656, dated 21 December 2010, whereon item 30a bears his signature. The DFAS has no record of the revised DD Form 2656.
4. 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.
5. 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.
6. 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 evidence of record shows that prior to his retirement on 31 December 2010, the applicant and his wife elected to decline participation in the SBP with a duly witnessed and notarized DD Form 2656, dated 21 December 2010.
2. It appears the Chief of the Transition Point failed to ensure the applicant signed the DD Form 2656 before she authenticated it and forwarded it to DFAS for processing and inclusion in his military pay records. Accordingly, DFAS automatically initiated premium deductions for SBP spouse coverage in the full amount.
3. Retirees normally 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.
4. However, it appears the applicant was not properly counseled. It is clear his intent was not to participate in the SBP as evidenced by the fact that he completed the SBP form electing not to participate in SBP and his spouse concurred. Although he and his spouse made the election before his retirement, it appears the Chief of the Transition Point failed to ensure the applicant signed the document prior to forwarding it to DFAS.
5. In the interest of equity and justice, his records should be corrected to show he elected not to participate in the SBP with his spouse's concurrence prior to the date of his retirement.
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. showing the applicant accurately completed the DD Form 2656 on 21 December 2010 (prior to the date he retired) electing not to participate in SBP and his spouse concurred with his decision on 21 December 2010 and it was properly notarized;
b. showing DFAS timely received and processed the appropriate form; and
c. reimbursing the applicant premiums that were already paid.
_______ _ 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) AR20110012267
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20110012267
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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