BOARD DATE: 2 October 2012
DOCKET NUMBER: AR20120004580
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 she elected not to participate in the SBP, but her Retiree Account Statement shows she was enrolled in the SBP.
3. She provides her DD Form 2656 (Data for Payment of Retired Personnel) and Retiree Account Statement.
CONSIDERATION OF EVIDENCE:
1. After having had prior service, the applicant enlisted in the Regular Army on 9 March 1993. She continued to serve on active duty through a series of reenlistments.
2. She completed a DD Form 2656 and signed this form on 15 September 2011. She placed an "X" in the first block of item 26g indicating she did not elect to participate in the SBP. She also placed an "X" in the first block of item 26g indicating she had eligible dependents under the plan. This form indicates her spouse and two dependent children were residing in Aliceville, AL at that time.
3. Her spouse did not sign the DD Form 2656 under Section XII (SBP Spouse Concurrence) to indicate he concurred with the SBP decision made by the applicant.
4. She retired on 1 February 2012. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates she was assigned to Fort Carson, CO at the time of retirement.
5. Her Retiree Account Statement with an effective date of 13 February 2012 shows SBP spouse only costs had been deducted from her retired pay in the amount of $112.71.
6. In an email, dated 13 March 2012, the Defense Finance and Accounting Service informed a staff member that their office had no record of any withdrawal request from the applicant and would need an administrative correction from the Army to change the SBP now.
7. In a notarized statement, dated 16 March 2012, the applicant's spouse concurred with her decision to decline the SBP.
8. 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. Elections are made by category, not by name. 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, if applicable) coverage.
9. 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 applicant retired on 1 February 2012.
2. On 15 September 2011, the applicant completed a DD Form 2656 and elected not to participate in the SBP. Her spouse did not sign the DD Form 2656 indicating he concurred with her decision to decline participation in SBP. As a result, she was automatically enrolled in SBP.
3. Given her near immediate application to the board, it appears it was always the applicant's and her spouses intent to decline participation in SBP, but they simply misunderstood the concurrence requirement. Therefore, as a matter of equity and in light of her spouse's verification of his concurrence, it would be appropriate to amend the applicants DD Form 2656 to show she declined to participate in the SBP in a timely manner 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 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:
a. amending her DD Form 2656 to show she and her spouse signed the form declining to participate in the SBP and the form was properly notarized;
b. showing DFAS timely received and processed the DD Form 2656 confirming declination of SBP; and
c. refunding her all SBP premiums 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) AR20120004580
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