BOARD DATE: 18 June 2013
DOCKET NUMBER: AR20120019620
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 32b of his DD Form 2656 (Data for Payment of Retired Personnel).
2. The applicant states he and his spouse clearly elected children-only Survivor Benefit Plan (SBP) coverage in section IX, item 26c of DD Form 2656. However, his spouse accidently wrote the incorrect date in item 32b due to her unfamiliarity with the military dating format. The error went unnoticed by the notary. The Defense Finance and Accounting Service (DFAS) claimed the DD Form 2656 was invalid because the date was written incorrectly, which resulted in an automatic election of spouse-only SBP coverage. He did not receive notification of the error. He first realized his SBP coverage was incorrect when he received his first retiree account statement on 15 October 2012. His spouse concurs with his request.
3. The applicant provides his DD Form 2656 and Retiree Account Statement.
CONSIDERATION OF EVIDENCE:
1. On 30 September 2012, the applicant retired for length of service in the rank of sergeant first class after completing more than 20 years of active service.
2. He submits a copy of a DD Form 2656 which shows:
* he was married to the person identified as his spouse on the DD Form 2656 on 15 March 2005
* children-only coverage is marked in item 26c
* election of SBP coverage based on full gross retired pay
* the form was signed by him and a notary on 28 June 2012
* his spouse's signature in item 32a
* "20120612" in item 32b (YYYYMMDD Format)
3. Item 33 (Notary Witness) shows the notary verified the applicant's spouse's identity and that she signed the form in his (the notary's) presence on 28 June 2012.
4. He submits a Retiree Account Statement, dated 9 October 2012. This form shows spouse-only SBP coverage.
5. Public Law 92-425, the SBP, enacted 21 September 1972, established the SBP. It 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, once made, is permanent and irrevocable except as provided for by law.
6. 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 provides less than the maximum spouse coverage.
7. The instructions for completing Section IX of the DD Form 2656 (on pages 3 and 4 of the form) state Title 10, U.S. Code, section 1448 requires that an otherwise eligible spouse concur if the member declines to elect SBP coverage, elects less than maximum coverage, or elects child only coverage. Therefore, a member with an eligible spouse upon retirement, who elects any combination other than items 26a or 26b and 27a, must obtain the spouse's concurrence in Section XII. A notary public must be the witness. The spouse's concurrence must be obtained and dated on or after the date of the member's election, but before the member's retirement/transfer date. If concurrence is not obtained when required, maximum coverage will be established for the retiring member's spouse and child(ren), if appropriate.
DISCUSSION AND CONCLUSIONS:
1. Every retiring member is automatically enrolled in the SBP for full spouse coverage (if married) unless the spouse consents in writing to reduced coverage or no coverage on or after the date of the member's election and prior to the effective date of retirement.
2. The DD Form 2656 the applicant provides shows he was married when he elected children-only SBP coverage based on full gross retired pay on 28 June 2012. A notary public witnessed the applicant's spouse's concurrence with his child(ren)-only SBP election.
3. It appears that based on the date entered in item 32b, DFAS determined his spouse's concurrence was not obtained when required (on or after the date of the applicant's SBP election), resulting in establishment of maximum coverage for his spouse and child(ren), as appropriate. The Retiree Account Statement he provides shows spouse only SBP coverage.
4. The applicant's explanation that his spouse accidentally entered the date of her signature incorrectly is supported by the evidence. As such, it would be appropriate to correct his records to show his spouse properly concurred with his election and reimbursing him for any excess SBP premiums paid.
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 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 correcting item 32b of his DD Form 2656 to show "20120628." As a result of this correction, his record should be further corrected to show he elected child(ren)-only SBP coverage based on full gross retired pay, and he should be reimbursed any excess SBP premiums paid.
_______ _ 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) AR20120019620
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20120019620
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