BOARD DATE:	  28 August 2012

		DOCKET NUMBER:  AR20120000922 


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 date in item 3 (Retirement/Transfer Date) of a DD Form 2656 (Data for Payment of Retired Personnel) and correction of her record to stop participation in the Survivor Benefit Plan (SBP).

2.  She states, in effect, she misunderstood what date should be placed in item 3 of the DD Form 2656, and she submitted documents electing not to participate in the SBP.  Her spouse has concurred with her decision not to participate in the SBP.

3.  The applicant provides two DD Forms 2656, a DD Form 2656-5 (Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate), orders, correspondence from the Defense Finance and Accounting Service (DFAS), and a U.S. Army Human Resources Command (AHRC) Form 249-2-E (Chronological Statement of Retirement Points).

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 5 March 1951.

2.  On 22 September 2004, she was notified she was eligible for retired pay at age 60 based on 20 years of qualifying service.  She was also notified she would automatically be enrolled in the RCSBP under Option C (spouse and children coverage based on full retired pay) unless she elected to defer enrollment until age 60 or enroll at less than the maximum level.  

3.  On 21 October 2004, she opted to decline to make an RCSBP election until age 60.  Her spouse concurred with the election.

4.  On 6 August 2009, approximately 18 months prior to reaching age 60, she completed a DD Form 2656.  In item 3 she entered the retirement date 1 April 2011. 

5.  Section IX (SBP Election), item 26 (Beneficiary Categories), of the DD Form 2656 lists SBP election options.  

	a.  Item 26 (Beneficiary Categories) lists seven options.  The applicant entered "NA" for options b and d through f.  She made no entries for options a ("I elect coverage for spouse only."), c ("I elect coverage for children only."), and g "(I elect not to participate in SBP.").

	b.  Item 27 (Level of Coverage) provides four options.  She entered "NA" for each option.

6.  Section XII (SBP Spouse Concurrence) of the DD Form 2656 bears a signature that does not resemble her spouse's signature shown elsewhere in the available records.  In item 32 (Notary Witness), a notary indicated she had verified the applicant's (emphasis added) signature in this section.  The instructions for Section XII state the spouse's signature is "required when the member is married and elects child(ren) only coverage, does not elect full spouse coverage, or declines coverage."  

7.  On 24 January 2011, AHRC, St. Louis, MO, issued Orders P01-940441, which retired her and placed her on the Army of the United States Retired List effective 5 March 2011, the date she reached 60 years of age.  

8.  She provides a DD Form 2656 bearing the handwritten entries "Mailed out 4/7/11" and "corrected copy."  Item 3 shows the date 5 March 2011.  Section IX shows she elected not to participate in the SBP, and Section XII bears her spouse's notarized signature.  

9.  On 6 August 2012, during the processing of this case, DFAS confirmed the DD Form 2656 dated 6 August 2009 is the document of record regarding her SBP election.  

10.  Public Law 92-425, the SBP, enacted 21 September 1972, 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 election to decline to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse (or child only coverage, if applicable) coverage.  

11.  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 to include persons of insurable interest should the Reservist die before reaching age 60.  Three options are available:  

	a.  Option A allows Reservists to decline enrollment upon notification of retirement eligibility and allows Reservists to elect coverage at age 60; 

	b.  Option B allows Reservists to elect to provide an annuity beginning on the 60th anniversary of their birth should they die before age 60 or on the day after the date of death should they die after their 60th birthday; and

	c.  Option C allows a Reservist to elect to provide an annuity immediately upon their death whether before or after age 60.  

12.  Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60.  The law is applicable to cases where 20-year letters have been issued after 1 January 2001.  In other words, failure to elect an option results in the default election of option C.

13.  Reservists who elect option A are required to make an SBP election when applying for retired pay at age 60.  Election of less than full SBP coverage or an election to decline enrollment requires written spousal consent.  Failure to make a valid election results in a default election of full SBP coverage.

DISCUSSION AND CONCLUSIONS:

1.  The 6 August 2009 DD Form 2656 on file with DFAS is ambiguous with regard to the applicant's SBP election.  She did not clearly indicate her election to not participate in the SBP by marking item 26g on the form.  Thus DFAS properly determined the election should default to full SBP coverage for her spouse.  

2.  The preponderance of evidence indicates the applicant did not intend to participate in the SBP.  She deferred her RCSBP election to age 60 and her spouse concurred.  When she applied for retired pay, she failed to include a timely notarized concurrence from her spouse.  She apparently realized her mistake and submitted a "corrected" DD Form 2656 bearing her spouse's notarized concurrence.  Though it was submitted about 1 month late, the "corrected" document appears to be consistent with the couple's intent.  In light of this evidence, it would be appropriate to correct her record to show she elected not to participate in the SBP and to return to her any SBP premiums already paid.  

3.  Regarding the date shown in item 3 of the DD Form 2656 on file with DFAS, it appears this is a harmless error and there would be no benefit from correcting it.  The orders placing her on the AUS Retired List show the correct date of her retirement, and this is the document that DFAS would normally use to establish the date of her eligibility for retired pay.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the 6 August 2009 DD Form 2656 on file with DFAS to show she elected not to participate in the SBP with her spouse's notarized concurrence and to return to her any SBP premiums she has already paid.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the date shown in item 3 of the DD Form 2656 on file with DFAS.



      _______ _  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)                                         AR20120000922





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ABCMR Record of Proceedings (cont)                                         AR20120000922



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