BOARD DATE:	  16 July 2013

		DOCKET NUMBER:  AR20120022350 


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).  She also requests a refund of the SBP premiums that she has paid.

2.  The applicant states she elected not to participate in the SBP.  She made her desire not to participate in the SBP known to the transition representative in Korea the first time she visited.  It is mostly her husband's desire not to participate, especially because he is almost 10 years older than she is.  However, the date she signed was after the date of her spouse's signature on the Spouse SBP Election Concurrence Statement.  She was stationed in Korea and her husband was in the United States where he completed a notarized Spouse SBP Election Concurrence Statement and mailed it back to her.  She questioned the transition representative about the dates when she signed the DD Form 2656 (Data for Payment of Retired Personnel) and he assured her that it was okay.  She trusted him because he was the subject matter expert. 

3.  The applicant provides:

* a Spouse SBP Election Concurrence Statement
* her DD Form 2656
* a Letter of Explanation
* three Retiree Account Statements (RAS's)

 

CONSIDERATION OF EVIDENCE:

1.  On 31 October 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.  The applicant's records maintained in the interactive Personnel Electronic Records Management System (iPERMS) contain a DD Form 93 (Record of Emergency Data), dated 22 July 2011, showing her spouse as Mr. KLW and an Enlisted Record Brief, dated 4 January 2012, showing her marital status as "married."

3.  The applicant's spouse completed a separate Spouse SBP Election Concurrence Statement, dated 21 March 2012, indicating he concurred with the election made by his spouse (the applicant).  He authenticated this statement by placing his signature and date in the appropriate place in the presence of the notary on 21 March 2012.

4.  On 4 April 2012, in anticipation of her upcoming retirement, the applicant completed a DD Form 2656.  The DD Form 2656 shows:

	a.  she did not identify a spouse in item 22 (Spouse). 

	b.  she placed an "X" in item 26g (Survivor Benefit Plan Election) of Section IX, indicating that she had no eligible dependents under the plan and she elected not to participate in the SBP.

	c.  a Retirement Services Officer (RSO)/SBP counselor authenticated this form by placing his signature and date in the appropriate blocks.

5.  The DD Form 2656, Section XII (SBP Spouse Concurrence) instructs the applicant that "SBP spouse concurrence is required when a member is married and elects child(ren) 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-Date Signed))."  Item 32a (Spouse Signature) does not contain the spouse’s signature. 

6.  She submits three RAS's, dated November 2012 through January 2013.  These statements show a deduction from her retired pay for SBP premiums for spouse-only SBP coverage.

7.  She submits a December 2012 email transmission from her SBP counselor to the Defense Finance and Accounting Service (DFAS) requesting assistance in correcting her record to show she elected not to participate in 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.  The election must be made prior to the effective date of retirement or else coverage automatically defaults to spouse coverage, if applicable.

9.  Public Law 99-145, enacted on 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.

10.  Public Law 105-85, enacted on 18 November 1997, established the option to terminate SBP participation.  Retirees have a 1-year period beginning on the second anniversary of the date on 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.  The effective date of termination is the first day of the first calendar month following the month in which the election is received by the Secretary concerned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her records should be corrected to show she elected not to participate in the SBP.  However, 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 evidence of record shows the applicant submitted a DD Form 2656 wherein she elected, in the presence of an RSO, not to participate in the SBP.  By law, her spouse was required to authenticate this form on or after the date she made this election but prior to the date of her retirement.  Her spouse did not sign the form, but signed a separate spouse concurrence/non-concurrence statement indicating that he did concur with her election.  The applicant then signed the DD Form 2656 after her spouse signed this statement.  It appears DFAS determined her 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 her spouse.  The RAS's she provides show spouse-only SBP coverage.

3.  It is clear that the applicant's intent all along was not to participate in the SBP.  Therefore, in the interest of equity, the applicant's records should be corrected to show she elected not to participate in the SBP with her spouse's concurrence and reimbursing her 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 showing she signed the DD Form 2656 on or before 21 March 2012 and reimbursing her for 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)                                         AR20120022350



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120022350



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1