Search Decisions

Decision Text

ARMY | BCMR | CY2011 | 20110013205
Original file (20110013205.txt) Auto-classification: Approved

		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 applicant’s 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 applicant’s 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 spouse’s written concurrence for a retiring member’s election that provided less than maximum spouse coverage.  The spouse’s 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 spouse’s 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 spouse’s concurrence is required.  No premiums will be refunded to those who opt to disenroll.    

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s 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





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110013205



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

Similar Decisions

  • ARMY | BCMR | CY2010 | 20100021135

    Original file (20100021135.txt) Auto-classification: Approved

    The applicant subsequently provided a notarized statement from her husband, dated 29 March 2011, requesting discontinuance of their participation in the SBP. There is no indication in the available records that shows the applicant submitted a DD Form 2656-1 (SBP Termination Request) or that she has made any attempt to terminate participation in the SBP. However, since the applicant has provided a notarized statement from her spouse within her 2-year anniversary of retirement, it would be...

  • ARMY | BCMR | CY2012 | 20120004580

    Original file (20120004580.txt) Auto-classification: Approved

    The applicant requests her records be corrected to show she declined participation in the Survivor Benefit Plan (SBP) and that she receive a refund for all SBP premiums taken from her retired pay. An election to decline to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse (or child only, if applicable) coverage. On 15 September 2011, the applicant completed a DD Form 2656 and elected not to participate in the SBP.

  • ARMY | BCMR | CY2009 | 20090002692

    Original file (20090002692.txt) Auto-classification: Approved

    Evidence of record shows that the applicant elected not to participate in spousal SBP coverage on 25 March 2008. It would, therefore, be just and equitable to show that the applicant elected not to participate in the SBP on 25 March 2008 with her spouse’s concurrence on 26 March 2008, and to correct her applicable records to show her DD Form 2656 was accepted and processed by the appropriate office in a timely manner. As a result, the Board recommends that all Department of the Army...

  • ARMY | BCMR | CY2014 | 20140001471

    Original file (20140001471.txt) Auto-classification: Approved

    He provides a Spouse SBP Election Concurrence Statement. After he retired, on 30 August 2013, the applicant completed a DD Form 2656 and elected not to participate in the SBP. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. amending his DD Form 2656 to show he and his spouse timely signed the form declining to participate in the SBP and the form was properly notarized; b. showing DFAS timely received and processed...

  • ARMY | BCMR | CY2014 | 20140019285

    Original file (20140019285.txt) Auto-classification: Denied

    IN THE CASE OF: BOARD DATE: 6 August 2015 DOCKET NUMBER: AR20140019285 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. On 27 March 2014, the retirement service office (RSO) at Fort Knox dispatched a certified letter by mail to the applicant’s spouse along with a Spouse SBP Concurrence Statement and instructions to complete and return it no later than 1 September 2014. The statement provided by the applicant’s spouse indicates he returned the Spouse SBP Concurrence Statement in April 2014...

  • ARMY | BCMR | CY2010 | 20100030358

    Original file (20100030358.txt) Auto-classification: Approved

    On 8 July 2009, his spouse signed a Spouse SBP Election Concurrence Statement indicating she non-concurred with the applicant's SBP election, child-only SBP coverage. His spouse provided a notarized statement, dated 14 December 2010, which is accepted as sufficient evidence to support her concurrence with his decision to enroll in the SBP for child-only coverage. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a....

  • ARMY | BCMR | CY2009 | 20090020627

    Original file (20090020627.txt) Auto-classification: Denied

    His spouse did not sign the DD Form 2656 under Section XII (SBP Spouse Concurrence) to indicate she concurred with the SBP decision made by her spouse. The applicant's RAS, dated 2 November 2009, shows that he is paying SBP coverage, spouse only, in the amount of $265.92. An election to decline to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse (or child only coverage, if applicable) coverage.

  • ARMY | BCMR | CY2011 | 20110016266

    Original file (20110016266.txt) Auto-classification: Approved

    An SBP election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married). However, the evidence also shows that both the applicant and her spouse signed a subsequent form declining coverage prior to the effective date of her retirement and the form was duly notarized. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing her duly-notarized...

  • ARMY | BCMR | CY2009 | 20090001114

    Original file (20090001114.txt) Auto-classification: Approved

    The applicant requests, in effect, that her records be corrected to show that she declined participation in the Survivor Benefit Plan (SBP) and that she receive a refund for all SBP premiums taken from her retired pay. The applicant states that she did not request the SBP deduction and her spouse signed her application for retirement indicating he knew he would not receive SBP benefits. The evidence of record shows the applicant’s 20-year letter was dated 5 May 1995.

  • ARMY | BCMR | CY2008 | 20080020073

    Original file (20080020073.txt) Auto-classification: Approved

    His spouse provided a notarized statement, dated 13 May 2009, indicating she concurred with the applicant's election not to participate in the SBP. However, even though his spouse signed the DD Form 2656 indicating she concurred with his decision to decline participation in the SBP, the form was not notarized as required. As a result, the Board recommends that the DD Form 2656 of the individual concerned be amended to show he and his spouse signed the form in a timely manner declining to...