IN THE CASE OF:
BOARD DATE: 1 August 2013
DOCKET NUMBER: AR20120019360
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, in effect, disenrollment from the Survivor Benefit Plan (SBP).
2. The applicant states, in effect, that she completed and signed a DD Form 2656 (Data for Payment of Retired Personnel), dated 19 August 2011, electing not to participate in the SBP. The Army Separation Counselor, Fort Knox, KY, informed her that her spouse would receive the form to get it notarized. But her spouse never received the form. On 13 September 2011, the form was signed by her spouse, notarized, and faxed to the Defense Finance Accounting Service (DFAS). Now SBP premiums are being erroneously withheld from her retirement pay even though she elected not to participate in the SBP.
3. The applicant provides a copy of her DD Form 2656, DD Form 214 (Certificate of Release or Discharge from Active Duty), a facsimile receipt, and her retirement orders.
CONSIDERATION OF EVIDENCE:
1. On 19 August 2011, the applicant completed a DD Form 2656 in which she elected to decline participation in the SBP. Her spouse did not sign the form at that time.
2. On 31 August 2011, the applicant was transferred to the Retired Reserve in the rank of sergeant first class/pay grade E-7. She had served 26 years,
2 months, and 25 days of active service and she was enrolled in the SBP as an automatic enrollment with full coverage.
3. On 13 September 2011, in the presence of a notary, the applicants spouse signed a DD Form 2656 concurring with the applicants election not to participate in the SBP. This election form was faxed to the DFAS on the same date.
4. Public Law 99-145, enacted on 8 November 1985, but effective 1 March 1986, required a spouses written concurrence for a retiring members election that provided less than maximum spouse SBP coverage.
5. Title 10, U.S. Code, section 1448 provides, 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 pursuant to Department of Defense Financial Management Regulation, Volume 7B, Chapter 43. When the spouses concurrence is required, the signature indicating concurrence must be corroborated by one or more witnesses.
6. Public Law 105-85, enacted on 18 November 1997, established the option to terminate SBP participation. Retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started to withdraw from the SBP. The spouses concurrence is required. No premiums will be refunded to those who opt to disenroll.
DISCUSSION AND CONCLUSIONS:
1. The evidence shows that at the time the applicant submitted her DD Form 2656 she elected not to participate in the SBP; however, her spouse did not sign the form concurring with her election until after she had retired. Consequently, she was automatically enrolled in the SBP with full coverage in accordance with laws and regulations in effect at the time. Accordingly, there was no error or injustice in this case.
2. The applicants contention that the DD Form 2656 completed by her spouse was forwarded to DFAS within 30 days has been noted and appears to lack merit because the form was not completed prior to her retirement date, which is required in order for an election to be accepted. Otherwise, automatic enrollment occurs.
3. Therefore, since she has failed to show that she was misinformed of her options under the SBP or performed due diligence to ensure her spouse received and properly prepared/timely returned the form and since she has the option of terminating her SBP participation beginning on the second anniversary of the date on which her retired pay started, provided her spouse concurs, there appears to be no basis to grant her requested relief.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X____ ___X____ ___X___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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.
2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism. The applicant and all Americans should be justifiably proud of his service in arms.
_______ _ 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) AR20120019419
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ABCMR Record of Proceedings (cont) AR20120019360
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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