IN THE CASE OF:
BOARD DATE: 15 March 2012
DOCKET NUMBER: AR20110017056
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 the record to show election of no Survivor Benefit Plan (SBP) coverage for her spouse prior to her retirement and reimbursement of premiums already collected.
2. The applicant states she believed she had checked the appropriate box to decline spousal coverage when she and her spouse elected not to participate in the SBP. The applicant thought if her spouse signed the form and had it notarized it was clear they did not want to participate in the SBP.
3. The applicant provides her September 2011 Retiree Account Statement, a notarized copy of a DD Form 2656 (Data for Payment of Retired Personnel), dated April 2011, and a newly notarized letter.
CONSIDERATION OF EVIDENCE:
1. On 1 April 2011, the applicant completed a DD Form 2656. In block 26a (Beneficiary Category(ies), I Elect Coverage For Spouse Only) she placed an X indicating she did not have dependent children.
2. In block 26g (I Elect Not To Participate In SBP) she placed an X indicating that she had eligible dependents under the plan and her spouse concurred in this decision. The applicant signed this document on 1 April 2011. Her spouse signed the document and it was notarized on 1 April 2011.
3. The applicant's record confirms, on 17 May 2011, the U.S. Army Human Resources Command, St. Louis published Orders P05-945577. These orders directed the applicant's retirement and placement on the Retired List in the retired rank of major, effective 1 March 2011.
4. On 21 February 2012, the applicant and her spouse provided a notarized letter to the Board further asserting their claim that they did not request to participate in the SBP.
5. Public Law 92-425, the SBP, enacted on 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. An election, once made, is irrevocable, except in certain circumstances as provided for by law. In cases of an election of no coverage or less than full coverage, spouse concurrence is required. Elections must be made prior to the effective date of retirement.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that she elected not to participate in the SBP and her spouse concurred with this election has been carefully considered and found to have merit.
2. There is no evidence suggesting the applicant was trying to mislead her spouse or make an SBP election without the concurrence of her spouse. This clearly seems to be the result of a misunderstanding on the part of the applicant and her spouse with regard to properly completing the form. This fact is evidenced by the notarized letter they completed on 21 February 2012. As a result, it would be appropriate and serve the interest of equity and justice to correct the record to show the applicant elected not to participate in the SBP on
28 February 2011 and the applicant's spouse concurred with this election on the same date.
3. Further, based on this correction, it would also be appropriate to reimburse the applicant all SBP premiums collected since the date of retirement through the date this decision is implemented.
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, on 28 February 2011, the applicant elected not to participate in the SBP and her spouse concurred with this election on the same date; and
b. refunding to her all SBP premiums collected from the date of her retirement through the date this decision is implemented.
_______ _ 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) AR20110017056
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ABCMR Record of Proceedings (cont) AR20110017056
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