IN THE CASE OF:
BOARD DATE: 17 April 2012
DOCKET NUMBER: AR20110016266
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 her military records to show she elected not to participate in the Survivor Benefit Plan (SBP).
2. The applicant states she wants the SBP automatic coverage withdrawn and her election not to participate honored. She contends she submitted the correct paperwork in November 2010 prior to her retirement. Additionally, her S-1 (personnel officer) sent it in several times, one of which was not correctly signed. The S-1 noticed the mistake and sent in a corrected copy. The applicant and her spouse were stationed at different locations at the time of her retirement. This necessitated having to send the forms to her spouse to sign and notarize. The submission and resubmission of the forms both took place well before her retirement date in January 2011.
3. The applicant provides:
* her retirement orders, dated 12 November 2010
* DD Form 2656 (Data for Payment of Retired Pay), dated 21 and 22 November 2011
* a fax cover sheet, dated 17 March 2011
* a letter to the Defense Finance and Accounting Service (DFAS), dated 16 April 2011
* an email from her S-1, dated 27 May 2011
* a letter to DFAS, dated 17 June 2011
CONSIDERATION OF EVIDENCE:
1. At the time of her application, the applicant was retired in the rank/grade of sergeant first class (SFC)/E-7.
2. Orders 316-0106, issued by Headquarters, III Corps, Fort Hood, TX, dated
12 November 2010, released the applicant from assignment and duty and placed her on the temporary disability retired list (TDRL) effective 22 January 2011.
3. A DD Form 2656 shows that the applicant elected not to participate in the SBP. Her signature is dated 21 November 2010. Her spouse concurred. His signature is dated 22 November 2010. The form was notarized on 22 November 2010.
4. A letter from DFAS to the applicant, dated 16 April 2011, states that the applicant was automatically enrolled in SBP with spouse coverage because her DD Form 2656 was not signed by her. She was advised to direct her dispute to this Board.
5. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP 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.
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).
6. Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouses written concurrence for a retiring members election that provides less than the maximum spouse coverage.
DISCUSSION AND CONCLUSIONS:
1. The available evidence indicates that DFAS initiated automatic spousal coverage because her signature was not on the DD Form 2656 it initially received. 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.
2. In view of the available evidence, and as a matter of equity, the applicant's records should be corrected by showing she had properly elected not to participate in the SBP and that her spouse concurred. Furthermore, the applicant should be refunded any and all premiums for SBP that were collected from her retired pay.
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:
a. showing her duly-notarized DD Form 2656 showing she properly elected not to participate in the SBP on 21 November 2010 and her spouse properly concurred with her election on 22 November 2010 was timely submitted and accepted by DFAS; and
b. refunding all SBP premiums collected from her retired pay.
_________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) AR20110016266
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ABCMR Record of Proceedings (cont) AR20110016266
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