BOARD DATE:	  3 January 2012

		DOCKET NUMBER:  AR20110012530 


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 to decline participation in the Survivor Benefit Plan (SBP) with spouse concurrence and his election was timely received and processed.

2.  The applicant states, in effect, he elected to decline participation in the SBP and his spouse concurred.  However, his spouse placed the wrong date on the SBP Election Concurrence Statement.  He was not able to review the document before it was sent back to the Retirement Services Officer (RSO) at Fort Drum, NY.  He believes the RSO should have notified him if there was an issue related to his paperwork.

3.  The applicant provides:

* DD Form 2656 (Data for Payment of Retired Personnel)
* SBP Spouse Election Concurrence Statement
* Retiree Account Statement

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 29 September 1988.  He served in a variety of stateside or overseas assignments and he attained the rank/grade of sergeant first class/E-7.

2.  On 13 January 2011, 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 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 a date before the date of the member's signature in item 30b (Member-Date Signed)."  

4.  By separate statement, his spouse concurred with his election and executed a Spouse SBP Election Concurrence Statement dated 30 January 2011.  However, the date this statement was notarized is shown as 31 January 2011.  It appears the spouse placed on the wrong date on the statement.

5.  The applicant retired on 31 March 2011. 

6.  An RSO official at Fort Drum, NY, confirmed on 5 December 2011 that the applicant elected not to participate in the SBP and that the form was transmitted to the Defense Finance and Accounting Service (DFAS) on 7 April 2011. 

7.  The applicant's Retiree Account Statement, dated 9 March 2011 (effective     1 April 2011), shows an SBP deduction for spouse coverage.  Additionally, the SBP coverage block of the Statement shows he has spouse only 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 spouse’s written concurrence for a retiring member’s 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 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.

2.  The evidence of record shows the applicant submitted a DD Form 2656 on 13 January 2011 wherein he elected, in the presence of an RSO counselor, not to participate in the SBP.  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. She did so.

3.  His spouse signed the form on 31 January 2011 (but erroneously listed the date as 30 January 2011) - after he made the election and prior to retirement.  A notary public authenticated her signature on 31 January 2011.  DFAS received this form on 7 April 2011.  It appears his SBP coverage defaulted to spouse coverage due to the discrepancy between his spouse’s signature and the notary public’s authenticating her signature.  Shortly after he retired, he discovered the error on his Retiree Account Statement. 

4.  It is clear that the applicant's intent was to decline participation in SBP.  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 by the statement dated 30 January 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:

* showing the applicant accurately completed the DD Form 2656, on 13 January 2011, electing not to participate in the SBP, and that his spouse concurred with his decision on 31 January 2011 with the notary public’s authentication of her signature on 31 January 2011
* showing the Defense Finance and Accounting Service timely received and processed the DD Form 2656 with the spouse's proper concurrence with the applicant's SBP election
* reimbursing the applicant all premiums already paid 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)                                         AR20110012530



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ABCMR Record of Proceedings (cont)                                         AR20110012530



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