IN THE CASE OF:	  

		BOARD DATE:	  18 April 2013

		DOCKET NUMBER:  AR20120017684 


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 his military records to show that he and his current spouse elected not to participate in the Survivor Benefit Plan (SBP).

2.  The applicant states he:

* needs to correct a mistake he made on his DD Form 2656 (Data for Payment of Retired Personnel) 
* was told to resubmit the DD Form 2656
* intended to waive SBP when he initially retired
* would like to stop payment of premiums and reimbursement of the payments already collected
* declined SBP; however, his wife signed the DD Form 2656 before he signed

3.  The applicant provides:

* two DD Forms 2656 
* marriage license
* marital settlement agreement

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 4 August 1950.  His records show with prior enlisted Regular Army and Reserve Component (RC) service he was appointed as a Reserve commissioned officer in December 1984.
2.  On 15 January 2003, the applicant received his notification of eligibility for retired pay at age 60 (20-year letter).   

3.  The applicant's record contains a DD Form 1883 (SBP Election Certificate), which was signed and witnessed on 10 February 2003.  This form shows the applicant was married and elected (Option A) deferring to make an election until age 60.  Item 9c shows his now-former spouse concurred with his election.

4.  The applicant submitted a copy of his marital settlement agreement, dated 
4 May 2009, which states in paragraph VI, page 8:

	a.  the parties agreed the applicant shall either request SBP for the former spouse or he would name the former spouse as the beneficiary of an amount of life insurance benefits equivalent to those the former spouse would receive as the beneficiary; 

	b.  at the time of the applicant's retirement, he would obtain a policy of insurance with a death benefit of at least $250,000.00; and 

	c.  the cost was to be shared equally by both parties.

5.  He remarried on 14 September 2009.

6.  On 15 February 2012, the applicant signed and submitted a DD Form 2656 indicating that he did not elect SBP coverage.  On 13 February 2012, the current spouse had signed item 32a (Signature (Spouse)) of the DD Form 2656 indicating that she concurred with the SBP election made by her husband.  This concurrence was required because the applicant opted for SBP coverage at less than the full base amount.  Item 33 (Notary Witness) does contain a signature.  This is required because the spouse must concur with the applicant's election of less than full SBP coverage.

7.  The applicant transferred to the USAR Control Group (Retired), effective 
1 August 2012, after completing 29 or more years of Reserve service. 

8.  On 9 September 2012, the applicant signed and resubmitted a DD Form 2656 again indicating that he did not elect SBP coverage.  On 10 September 2012, the current spouse signed item 32a of the DD Form 2656 indicating that she concurred with the applicant's SBP election.  

9.  The applicant did not submit any evidence and his record is void of any evidence that shows he attempted to change his RCSBP election within 1 year of remarriage.
10.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. 

11.  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.

12.  Department of Defense Financial Management Regulation, volume 7B, chapter 43, provides guidance on SBP elections.  This chapter states, in pertinent part, that effective 1 March 1986, a married member is enrolled with spouse coverage on full retired pay at the time of retirement unless that spouse has concurred in writing to another election requested by the member.  When the spouse’s concurrence is required, the signature indicating concurrence must be corroborated by one or more witnesses.  This chapter also states, in pertinent part, that the Secretary of the Military Department concerned (or designee) may correct any election or any change or revocation of an election when the Secretary considers it necessary to correct an administrative error.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his SBP election should be changed from full coverage to no survivor coverage was carefully considered and found to have merit.

2.  The evidence shows the applicant elected Option A and deferred his SBP election until age 60 and his spouse at the time concurred.  Therefore, he was not enrolled in the SBP.

3.  The evidence of record shows the applicant attempted to decline enrollment in the SBP.  The evidence of record also shows his current spouse concurred with his election by completing the Spousal SBP Election Concurrence Statement and having it notarized.  However, the current spouse signed the form before the applicant, which rendered the action void.  It would be equitable to correct his military records to show he timely elected not to participate in the SBP, that his current spouse concurred with his election in a timely manner, and that he is entitled to reimbursement of all SBP deductions from his retired military pay.






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 showing he timely elected not to participate in the SBP, his spouse timely concurred with his election, and DFAS should reimburse the applicant all monies collected from his retired pay.



      _______ _   __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)                                         AR20120017684



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ABCMR Record of Proceedings (cont)                                         AR20120017684



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