IN THE CASE OF:	   

		BOARD DATE:	  25 October 2012

		DOCKET NUMBER:  AR20120006674


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 her records to show she elected not to participate in the Survivor Benefit Plan (SBP) and her spouse concurred with her election.

2.  The applicant states:

* she mailed her DD Form 2656 (Data for Payment of Retired Personnel) from her transition center in Korea to her husband in the continental United States (CONUS) for signature
* after acknowledging and concurring with her SBP election, her husband returned the form to an incorrect address in Korea
* because of this error, the signed DD Form 2656 was never processed to the local pay office for input to the Defense Finance and Accounting Service (DFAS)
* her DD Form 2656 was submitted without her spouse's signature because he sent the signed version to an incorrect address
* during her transition process, it was explained to her that if the signed copy was not received in time, an unsigned version would have to be submitted in order for her to receive her retired pay 

3.  The applicant provides a DD Form 2656 that she signed on 21 December 2011 and her spouse signed on 28 March 2012.

CONSIDERATION OF EVIDENCE:

1.  On 11 February 1986, the applicant married her spouse, Walter.

2.  On 12 February 1986, she enlisted in the Regular Army.  She completed training and she was awarded military occupational specialty (MOS) 75C (Personnel Management Specialist), that was later part of an MOS consolidation and was redesignated as MOS 42A (Human Resources Specialist).  She served continuously in various staff and leadership positions in CONUS, overseas, and combat assignments.  She attained the rank/grade of sergeant first class (SFC)/
E-7.

3.  On 21 December 2011, she completed a DD Form 2656.  She placed an "X" in item 26g (Beneficiary Category(ies)), indicating she elected not to participate in the SBP because she had no eligible dependents under the plan.  She authenticated her election by placing her signature in the appropriate block, and her signature was witnessed by an SBP counselor whose signature also appears on the form.

4.  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 children-only coverage, does not elect full spouse coverage, or declines coverage.  The date of the spouse's signature in item 32b (Spouse – Date Signed) MUST NOT be before the date of the member's signature in item 30b (Member – Dated Signed)."

5.  Orders 262-0001, issued by the Installation Management Command, Korea Region, dated 19 September 2011, ordered her release from active duty by reason of retirement, effective 29 February 2012, and placement on the Retired List in the rank/grade of SFC/E-7, effective 1 March 2012.

6.  On 29 February 2012, she was retired by reason of sufficient service for retirement.  She completed 26 years and 19 days of creditable active service.

7.  Her retiree account statement is not available for review; however, without her spouse's signature in item 32a of her DD Form 2656, indicating his concurrence with her decision to decline participation in the SBP, her SBP election would automatically default to spouse-only coverage by law.

8.  She submitted an updated, signed, and notarized DD Form 2656, that she signed on 21 December 2011 and her spouse signed on 28 March 2012 (after 

her effective date of retirement), where her spouse indicated his concurrence with her decision to decline participation in the SBP.

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.  Elections are made by category, not by name.  An election to provide child-only coverage, or an election to decline participation in the SBP, must be made prior to the effective date of retirement or else coverage automatically defaults to spouse-only coverage (or child-only coverage, if applicable).

10.  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.

11.  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 in 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 evidence of record shows the applicant submitted a DD Form 2656 wherein she, in the presence of a retirement services office counselor, elected not to participate in the SBP.  However, the governing law required her spouse to authenticate this form on or after the date she made her election, but prior to the date of her retirement.  The DD Form 2656 she submitted shows her spouse signed his concurrence after her effective date of retirement.

2.  By the applicant's own admission, her DD Form 2656 was submitted without her husband's signature and concurrence in an effort to ensure her retired pay was timely processed.  It is presumed that when officials at DFAS received her DD Form 2656, they determined it was invalid since it lacked her spouse's concurring signature.  Therefore, her SBP coverage defaulted to the spouse-only coverage.

3.  By law, since her spouse did not acknowledge his concurrence of her election not to participate in the SBP prior to her effective date of retirement, it is proper that her SBP election defaulted to spouse-only coverage.  However, it is clear she intended to decline participation, based on her signature on 21 December 2011, and her husband supported that decision.  Therefore, as a matter of equity, 

it would be appropriate to grant the requested relief by correcting her record to show her husband signed and returned her DD Form 2656, indicating his concurrence with her SBP election, prior to her effective date of retirement.

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 by:

	a.  showing the applicant accurately completed the DD Form 2656 on
21 December 2011, electing not to participate in the SBP, and that her spouse properly concurred with her decision on the same date;

	b.  showing DFAS timely received and processed the DD Form 2656 with the spouse's concurrence not to participate in the SBP; and

	c.  reimbursing any premiums already paid by the applicant 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)                                         AR20090020413



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ABCMR Record of Proceedings (cont)                                         AR20120006674



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