BOARD DATE:	 3 May 2012 

		DOCKET NUMBER:  AR20110021185 


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, in effect, correction of his records to show he elected to decline participation in the Survivor Benefit Plan (SBP) with spousal concurrence and his election was timely received and processed.

2.  The applicant states he elected to decline participation in the SBP and his spouse concurred.  However, his spouse placed the wrong date on the SBP Election Concurrence Statement.  She accidently put 2010 instead of 2011 and the election was found to be void.  This was an honest mistake which was not caught by him, the notary public, or the Fort Lewis, WA, Retirement Services Officer (RSO) prior to the paperwork being processed.

3.  The applicant provides:

* DD Form 2656 (Data for Payment of Retired Personnel), dated 2 March 2011
* SBP Spouse Election Concurrence Statement, dated 8 March 2011
* Retiree Account Statement, dated 29 September 2011
* letter of explanation/correction request, dated 14 October 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 26 October 1988.  He served in a variety of stateside and overseas assignments and he attained the rank/grade of first sergeant/E-8.

2.  On 2 March 2011 in anticipation of his upcoming retirement, the applicant completed a DD Form 2656.  He placed an "X" in item 26g (SBP Election) of Section IX indicating that he did have eligible dependents under the plan and elected not to participate in the SBP.

3.  Section XII (SBP Spouse Concurrence) of the DD Form 2656 instructs the applicant that "SBP spouse concurrence is required when a member is married and elects child(ren)-only coverage, does not elect full spouse coverage, or declines coverage.  The date of the spouse's signature in item  2b (Spouse – Date Signed) MUST NOT be a date before the date of the member's signature in item 30b (Member – Date Signed)."

4.  By separate statement, his spouse concurred with his election and executed a Spouse SBP Election Concurrence Statement, dated 8 March 2010.  However, the date this statement was notarized is shown as 8 March 2011.  It appears the spouse placed the wrong year on the statement.

5.  The applicant retired on 31 August 2011.

6.  An RSO official at Fort Lewis, WA, confirmed on 15 March 2011 that the applicant elected not to participate in the SBP and the form was transmitted to the Defense Finance and Accounting Service (DFAS) that same day.

7.  The applicant's Retiree Account Statement, dated 29 September 2011 (effective 1 November 2011), shows an SBP deduction for spouse coverage.  Additionally, the SBP coverage block of the statement shows he has spouse-only coverage.

8.  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.  The election must be made prior to the effective date of retirement or coverage automatically defaults to spouse coverage, if applicable.

9.  Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse's written concurrence for a retiring member's election that provides less than the maximum spouse coverage.

10.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a 1-year period beginning on the second anniversary of the date on which their retired pay started to withdraw from SBP.  The spouse's concurrence is required.  No premiums will be refunded to those who opt to disenroll.  The effective date of termination is the first day of the first calendar month following the month in which the election is received by the Secretary concerned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he elected not to participate in the SBP.

2.  The evidence of record shows the applicant submitted a DD Form 2656 on 2 March 2011 wherein he elected not to participate in the SBP in the presence of an RSO counselor.  By law, his spouse was required to authenticate this form on or after the date he made this election but prior to the date of retirement.  She did so.

3.  His spouse signed the form on 8 March 2011 (but erroneously listed the date as 8 March 2010) after he made the election and prior to retirement.  A notary public authenticated her signature on 8 March 2011.  DFAS received this form on 15 March 2011.  It appears his SBP coverage defaulted to spouse coverage due to the discrepancy between the date his spouse inadvertently placed by her signature and the date the notary public authenticated her signature.  Shortly after he retired, he discovered the error on his Retiree Account Statement.

4.  It is clear the applicant's intent was to decline participation in SBP and his spouse concurred in that decision.  Additionally, his spouse has affirmed her concurrence in a notarized letter submitted with this application.  In the interest of equity, the applicant's records should be corrected to show he elected not to participate in SBP with his spouse's concurrence.

BOARD VOTE:

__x__  __x______  __x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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:

* showing the applicant accurately completed the DD Form 2656 on 2 March 2011 electing not to participate in the SBP and his spouse concurred with his decision on 8 March 2011 with the notary public's authentication of her signature on 8 March 2011
* showing DFAS timely received and processed the DD Form 2656 with the spouse's proper concurrence with the applicant's SBP election
* reimbursing the applicant all premiums already paid as a result of this correction



      __________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)                                         AR20110021185



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ABCMR Record of Proceedings (cont)                                         AR20110021185



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