IN THE CASE OF:
BOARD DATE: 17 January 2012
DOCKET NUMBER: AR20110013205
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 that her Survivor Benefit Plan (SBP) coverage be terminated.
2. The applicant states that she never wanted to enroll for coverage under the SBP and she filled out the necessary paperwork based on the instructions she was given to ensure that she was not enrolled in the SBP and she was enrolled anyways because the form was not prepared correctly.
3. The applicant provides a notarized statement from her spouse indicating that he does not desire to participate in the SBP, a copy of her DD Form 2656, and a copy of her Leave and Earnings Statement (LES).
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant was born on 14 May 1951 and enlisted in the United States Army Reserve (USAR) on 18 August 1978 for a period of 3 years and she remained in the USAR through a series of continuous reenlistments. She was promoted to the pay grade of E-7 on 24 March 1988 and on 20 December 2000, she was issued her 20-year letter.
3. In November 2010, the applicant submitted her DD Form 2656 (Data for Payment of Retired Personnel) and elected to decline SBP participation. Her spouse also declined participation; however, it appears that her spouse declined before she made an election and her application was deemed to be incorrectly completed and she was automatically enrolled in full SBP coverage.
4. On 15 May 2011, the applicant was transferred to the Army of the United States (AUS) Retired List in the pay grade of E-7 with full SBP coverage.
5. Public Law 99-145, enacted on 8 November 1985, but effective 1 March 1986, required a spouses written concurrence for a retiring members election that provided less than maximum spouse coverage. The spouses signature must be witnessed and notarized.
6. Title 10, United States Code, Section 1448 provides, in pertinent part, that effective 1 March 1986, a married member is enrolled with spouse coverage on full retired pay at the time of retirement unless that spouse has concurred in writing to another election requested by the member pursuant to Department of Defense Financial Management Regulation, Volume 7B, Chapter 43. When the spouses concurrence is required, the signature indicating concurrence must be corroborated by one or more witnesses.
7. Public Law 105-85, enacted on 18 November 1997, established the option to terminate SBP participation. Retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from the SBP. The spouses concurrence is required. No premiums will be refunded to those who opt to disenroll.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that she intended to decline SBP participation but was automatically enrolled because the form was not properly prepared has been noted and is accepted.
2. It is apparent that the applicant intended to decline SBP; however, because she signed the form after her spouse, instead of before her spouse, she was automatically enrolled in the SBP under full coverage.
3. However, it appears that had the applicant been properly counseled this mistake could have been avoided and she would not have been enrolled in the SBP against her wishes. Therefore, as a matter of equity, her records should be corrected to show that she signed the election on the same date as her spouse to decline SBP.
4. Additionally, the applicant should be refunded all SBP premiums paid to date.
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, as a matter of equity, by showing that the applicant elected to decline SBP on the same date as her spouse and that all SBP premiums paid to date be refunded to her.
____________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) AR20110013205
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20110013205
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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