IN THE CASE OF:
BOARD DATE: 5 December 2013
DOCKET NUMBER: AR20130005789
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).
2. The applicant states during her time of separation, she was stationed at Fort Lee, VA. She elected not to participate in the SBP. Her spouse resided in Texas and never received correspondence from Fort Lee in order to make an election.
3. The applicant provides:
* DD Form 2656 (Data for Payment of Retired Personnel)
* Spouse SBP Election Concurrence Statement
CONSIDERATION OF EVIDENCE:
1. The applicant's records show she was appointed as a Reserve warrant officer of the Army and executed an oath of office on 29 September 1999. She served in a variety of assignments and attained the rank of chief warrant officer four (CW4).
2. On 3 December 2012, in anticipation of her upcoming retirement, she completed a DD Form 2656. She indicated she was married, as of 30 January 2010, and she had a dependent son, born in April 1998. She elected not to participate in the SBP. She and a Retirement Services Officer (RSO) authenticated this form with their signatures.
3. She retired on 12 February 2013 and she was placed on the Retired List in her retired rank of CW4.
4. Defense Finance and Accounting Service (DFAS) records do not show the applicant made an election to participate or decline participation in the SBP prior to her retirement and as a result, her coverage defaulted to automatic spouse coverage.
5. The applicant provides a notarized statement, dated 19 March 2013, from the applicant's spouse indicating his agreement with the decision made regarding the SBP election.
6. The case analyst of record contacted the Chief, RSO, Fort Lee, VA, on
30 October 2013. The Chief indicated that a letter was sent by certified mail to the applicant's spouse advising him of the applicant's election to decline participation in the SBP. However, the letter was never delivered or signed for due to a "bad address on file."
7. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election, once made, was irrevocable except in certain circumstances. This law also provides that every member having a spouse and/or child(ren), who retired/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list.
8. 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 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 retired on 12 February 2013. Prior to her retirement, on 3 December 2012, she completed a DD Form 2656 and indicated she did not want to participate in the SBP. This election should have triggered a notification to the spouse that explained the options available to him and their effects.
2. The RSO contends a notification letter was mailed but was never delivered due to a bad address. However, there would have been sufficient time prior to the applicant's retirement to obtain the correct address and advise the spouse of the options. It appears the RSO did not exercise due diligence. The applicant should not be penalized for this administrative error.
3. As a matter of equity, her records should be corrected to show she elected not to participate in the SBP, her spouse concurred with this election, and DFAS timely processed it.
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 the applicant timely completed a DD Form 2656 electing not to participate in the SBP, and that her spouse properly concurred with her decision on the same date
* showing the Defense Finance and Accounting Service timely received and processed the applicant's DD Form 2656 declining the SBP with the spouse's concurrence
* reimbursing all 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) AR20130005789
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ABCMR Record of Proceedings (cont) AR20130005789
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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