IN THE CASE OF:
BOARD DATE: 6 March 2012
DOCKET NUMBER: AR20110017092
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 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.
2. She states:
a. she specifically requested that she and her spouse did not wish to enroll in the SBP.
b. she has called the Defense Finance and Accounting Service (DFAS) multiple times since February 2011 to get this error corrected and each time she has spoken with someone different who told her they would correct this problem.
c. it wasnt until July 2011 when she spoke with a representative at DFAS who advised her to contact this Board so DFAS would stop the SBP deduction and reimburse her the total amount of money that was deducted from her retired pay.
3. She provides:
* Certified mail receipt
* Letter addressed to DFAS
* Standard Form 1199A (Direct Deposit)
* DD Form 108 (Application for Retired Pay Benefits)
* DD Form 2656 (Data for Payment of Retired Personnel)
* Retiree Account Statement
* Letter from DFAS, Retired and Annuity Pay
* ARPC Form 249-E (Chronological Statement of Retirement Points)
* Retirement orders
* Reassignment orders
* Amendment orders
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 14 November 1950. She was appointed as a Reserve commissioned officer on 20 July 1983 and she was married on 20 August 1983.
2. The applicants notification of eligibility to receive retired pay at age 60
(20-Year Letter) is dated 10 December 1998. There is no evidence she elected to participate in the Reserve Component SBP (RCSBP) at that time which defered her election until reaching age 60 and applying for retired pay.
3. Orders published on 8 November 2010 reassigned her to the Retired Reserve, effective 1 December 2010, for the purpose of reaching the maximum authorized years of service. These orders were amended on 8 November 2010, which changed the effective date from 1 December 2010 to 14 November 2010.
4. On 8 December 2010, she submitted her retired pay application with other supporting documents to DFAS.
5. She completed a DD Form 2656 and signed this form on 8 December 2010. She placed an X in the first block of item 26g indicating she did not elect to participate in SBP. She also placed an X in the second block of item 26g indicating that she did not have eligible dependents under the plan. Her spouse signed the DD Form 2656 on 8 December 2010 under Section XII (SBP Spouse Concurrence) to indicate he concurred with the SBP decision made by his spouse. The document was notarized on 8 December 2010.
6. The applicant reached age 60 on 14 November 2010.
7. Orders published on 31 January 2011 placed her on the Retired List, effective 2 December 2010, in the rank of lieutenant colonel.
8. In a 1 February 2011 letter, DFAS, Retired and Annuity Pay informed the applicant of her monthly net pay amount. Her Retiree Account Statement with an effective date of 1 February 2011 shows SBP spouse only costs had been deducted from her retired pay in the amount of $127.08.
9. 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.
10. Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60. Three options are available: (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60, but delay payment of it until the date of the members 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.
11. 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 evidence of record shows the applicants 20-year letter was dated 10 December 1998. It appears she did not elect to participate in the RCSBP at that time.
2. It appears DFAS started retired pay on 1 December 2010.
3. The applicant completed and signed a DD Form 2656 on 8 December 2010. She placed an "X" in the first block of DD Form 2656 indicating she declined participation in the SBP and her spouse concurred with her decision on 8 December 2010.
4. However, her Retiree Account Statement shows she was automatically enrolled in SBP for spouse only coverage.
5. It appears that it was the applicant's and her spouses intent to decline participation in the SBP. They completed and marked the appropriate paperwork, but it appears the paperwork was lost or mishandled. Therefore, as a matter of equity, it would be appropriate to correct her records to show she declined to participate in the SBP with her spouse's concurrence, and to refund her any paid premiums.
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 to show she and her spouse signed the form in a timely manner declining to participate in the SBP and it was received and accepted for processing by the appropriate office, thus resulting in her never being enrolled in the SBP and being due a refund of all SBP premiums paid.
_______ _ _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) AR20110017092
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ABCMR Record of Proceedings (cont) AR20110017092
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