IN THE CASE OF:	  

		BOARD DATE:	  12 July 2012

		DOCKET NUMBER:  AR20120000267 


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 termination of his participation in the Survivor Benefit Plan (SBP).

2.  The applicant states he is insured and does not have a need for the SBP with spouse coverage.  During his retirement processing, he and his wife completed several forms at Fort Sill, Oklahoma and declined the SBP; however, he cannot find the forms they completed.

3.  The applicant provides copies of his marriage certificate, SBP termination request, a statement by his spouse, and SBP Board Functions paper.

CONSIDERATION OF EVIDENCE:

1.  Headquarters, U.S. Army Garrison Command, Fort Knox, Kentucky, Orders 167-0167, dated 16 June 2011, reassigned the applicant to the Fort Sill Transition Center for separation processing on 30 August 2011.  The applicant was instructed to contact the Retirement Services Officer to schedule SBP counseling for him and his spouse no later than 60 days prior to retirement.

2.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty on 6 October 1987, he was honorably retired based on sufficient service for retirement on 31 October 2011, and placed on the retired list.  He completed 24 years and 25 days of active service.

3.  A review of the applicant's military personnel records failed to reveal a copy of his DD Form 2656 (Data for Payment of Retired Personnel) showing his SBP election.

4.  In support of his application, the applicant provides the following documents:

   a.  State of Delaware, Marriage License and Certificate of Marriage, that shows the applicant and Dannette Michelle B---- were married on 20 October 2001;

   b.  DD Form 2656-2 (SBP Termination Request) that shows:

* the applicant requested to discontinue participation in the SBP
* his spouse acknowledged her understanding of the disadvantages of the decision and provided her concurrence
* the applicant, his spouse, and a witness signed the form on
29 December 2011 

   c.  notarized statement by Dannette M. H----, dated 25 January 2012, in which she provides her:

* concurrence with the SBP election change requested by her spouse to terminate SBP coverage
* affirmation that she does not have a need for the SBP
* acknowledgement that she understands the decision is irrevocable
* understanding that she is waiving her rights to any post-death SBP benefits

   d.  SBP Board Functions paper that shows the Department of the Army SBP Board is authorized to consider and make administrative corrections to SBP elections.  It states, "Key to the Board's function is proof of government administrative error.  The burden of proof is generally on the claimant."

5.  In connection with the processing of this case, the General Processing Branch, Defense Finance and Accounting Service (DFAS), Cleveland, Ohio, was asked to verify information relevant to the applicant's SBP election, coverage, and participation.  DFAS provided a copy of the DD Form 2656 it has on file that was completed by the applicant on 30 August 2011.  It shows in:
   
   a.  Section VIII (Dependency Information), item 22 (Spouse), that the applicant was married to Dannette M. H----- and had five dependent children;

   b.  Section IX (SBP Election), item 26 (Beneficiary Category(ies)), the applicant elected not to participate in the SBP and acknowledged he had eligible dependents;

   c.  Section XI (Certification), item 30 (Member), the applicant and an Army SBP counselor each affixed their signature on the document on 30 August 2011; and

   d.  Section XII (SBP Spouse Concurrence), "(Required when 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 32.b MUST NOT be before the date of the member's signature in item 30.b, above.)  The spouse's signature MUST be notarized."

       (1)  Item 32 (Spouse), "I hereby concur with the Survivor Benefit Plan election made by my spouse.  I have received information that explains the options available and the effects of those options.  I know that retired pay stops on the day the retiree dies.  I have signed this statement of my free will."  There is no signature or date in item 32a (Signature) or item 32b (Date Signed).

       (2)  Item 33 (Notary Witness) is blank (no entries).

	e.  The DD Form 2656 contains the notation "Waiting Concurrence" on the top front margin of the form.

6.  Public Law 92-425, the Survivor Benefit Plan, 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.  

7.  Section 1448, Title 10, U.S. Code, provides that if a person makes an election not to participate in the SBP, the person's spouse shall be notified of that election.  Spousal concurrence is needed only when a married person elects to provide an annuity for his spouse at less than the maximum level or to provide an annuity for a dependent child but not for his spouse.

8.  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.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his participation in the SBP should be terminated because during his retirement processing he and his spouse completed the appropriate SBP forms at Fort Sill, Oklahoma and declined the SBP, but the forms cannot be located.  In addition, both he and his spouse concur with the decision to terminate the SBP.

2.  Records show that on 30 August 2011 the applicant elected not to participate in the SBP and acknowledged he had eligible dependents.  As such, his spouse's concurrence with his SBP election was required.

	a.  The evidence of record indicates the SBP election form was being held pending his spouse's concurrence (i.e., "waiting concurrence"). 

	b.  The applicant retired from active duty on 31 October 2011.

	c.  The DD Form 2656 on file at DFAS is absent the spouse's signature.  (As such, it is not notarized.)  Consequently, the applicant's SBP election correctly defaulted to automatic spouse coverage.

3.  Based on the evidence of record, there does not appear to be an administrative error on the part of the government in this case.

4.  Therefore, there is insufficient evidence to support the applicant's requested relief.

5.  The applicant is advised that retirees have a 1-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from the SBP.  However, the spouse's concurrence is required and no premiums will be refunded to those who opt to disenroll.  The applicant may obtain a copy of a DD Form 2656-2 (SBP Termination Request) from the Official Department of Defense Issuances (Forms Management Program) website at: http://www.dtic.mil/whs/directives/infomgt/forms/formsprogram.htm.

6.  The applicant is also advised that he and his spouse may contact the nearest Retirement Services Officer (RSO) for additional information and assistance regarding this matter.  A listing of RSOs by country, state, and installation is available on the Internet at:  http://www.armyg1.army.mil/RSO/rso.asp


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _  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)                                         AR20120000267



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ABCMR Record of Proceedings (cont)                                         AR20120000267



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