IN THE CASE OF:	  

		BOARD DATE:  28 January 2014

		DOCKET NUMBER:  AR20130007159 


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 termination of her participation in the Survivor Benefit Plan (SBP).

2.  The applicant states she did not elect SBP coverage when she out-processed at Fort Hood, TX, on 9 January 2013.  The human resources (HR) specialist was supposed to mail the DD Form 2656-5 (Reserve Component SBP (RCSBP) Election Certificate) that contained her husband's signature to the Defense Finance and Accounting Service (DFAS).  Instead, he mailed a DD Form 2656-5 that she had signed in his office and only had her signature on it.  She adds that the HR specialist's performance of duty is unacceptable.

3.  The applicant provides a DD Form 2656-5, dated 11 April 2013.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable enlisted service in the U.S. Army Reserve and Regular Army from 5 January 1994 through 11 May 2000.

2.  She was appointed as a Reserve commissioned officer, in the rank of second lieutenant.  She last entered on active duty on 2 September 2008.

3.  She was promoted to major/pay grade O-4 on 3 June 2010.

4.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was honorably retired based on temporary disability (enhanced) on 25 February 2013.  She completed 4 years, 5 months, and 24 days of net active service this period; 10 years, 2 months, and 22 days of total prior active service; and 4 years, 5 months, and 5 days of total prior inactive service.  It also shows in:

   a.  item 21, block a (Member Signature) and block b (Date), the applicant digitally signed the document on 9 January 2013; and

   b.  item 22, block a (Official Authorized to Sign) and block b (Date), the HR specialist digitally signed the document on 9 January 2013.

5.  A review of the applicant's military personnel records failed to reveal a Notice of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter) or a DD Form 2656 (Data for Payment of Retired Personnel) showing her SBP election.

6.  In support of her application, the applicant provides an original copy of a 
DD Form 2656-5, dated 11 April 2013.  [The form is to be used by Reserve Component members during the 90-day period after receiving notification of eligibility to receive Reserve retired pay, to make an election for the RCSBP.]  It shows in:

   a.  Section III (Spouse/Dependent Children Information), she listed the name of her spouse (Max A. M-----) and the names of her two sons;

   b.  Section IV (Coverage), she elected Option A - I decline to make an election until age 60;

   c.  Section VIII (Member Signature), the applicant and a witness signed the document on 11 April 2013;

   d.  Section IX (Spouse Concurrence):
   
    	(1)  item 20 (Spouse), "I hereby consent in my spouse's RCSBP election as indicated.  I have read and understand the information that explains the options available and the effects of those options.  I am aware that my signature constitutes consent and that I may not change my mind at a later date regarding the RCSBP election."

    	(2)  block a (Signature), the script initial "G" and the date 11 April 2013; and

   e.  item 21 (Notary Witness), the Notary Public (Jessica G---) affirmed that "M--- A. M----" personally appeared before her, provided satisfactory evidence of identification, and signed the document in her presence in item 20, block a.
7.  In connection with the processing of this case, the General Processing Branch, DFAS, Cleveland, Ohio, was asked to verify information relevant to the applicant's SBP election, coverage, and participation.  The DFAS official indicated the applicant is currently listed as having SBP automatic coverage and also provided a copy of the DD Form 2656 it has on file that was completed by the applicant and HR specialist on 9 January 2013.  It shows in:
   
   a.  Section VIII (Dependency Information), item 22 (Spouse), that the applicant was married to "Max M-----" and had two dependent children;

   b.  Section IX (SBP Election), item 26 (Beneficiary Category(ies)), the applicant elected not to participate in the SBP and acknowledged she had eligible dependents;

   c.  Section XI (Certification), item 30 (Member), the applicant and HR specialist affixed their signatures on the document on 9 January 2013; and

   d.  Section XII (SBP Spouse Concurrence), "(Required when 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 MUST NOT be before the date of the member's signature in item 30b, above.)  The spouse's signature MUST be notarized."

       (1)  Item 32 (Spouse), "I hereby concur with the Survivor Benefit Plan election made by my spouse.  I have received information that explains the options available and the effects of those options.  I know that retired pay stops on the day the retiree dies.  I have signed this statement of my free will."  There is no signature in item 32a (Signature) or date in item 32b (Date Signed).

       (2)  Item 33 (Notary Witness) is blank (no entries).

8.  In connection with the processing of this case, the Retirement Services Office (RSO), Fort Hood, TX, was asked to verify information relevant to the applicant's SBP election, coverage, and participation.  The RSO provided a copy of the 
DD Form 2656 on file that was completed by the applicant on 9 January 2013.  
It shows the same information as the DD Form 2656 that DFAS has on file.  The RSO also indicated that a review revealed that the HR specialist failed to send a spouse concurrence letter to the applicant's spouse.

9.  Public Law 92-425, the Survivor Benefit Plan, enacted 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.  

10.  Section 1448, Title 10, U.S. Code, provides that if a person makes an election not to participate in the SBP, the person's spouse shall be notified of that election.  Spousal concurrence is needed only when a married person elects to provide an annuity for their spouse at less than the maximum level or to provide an annuity for a dependent child but not for their spouse.

11.  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 the SBP.  The spouse's concurrence is required.  No premiums will be refunded to those who opt to disenroll.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her participation in the SBP should be terminated because during her retirement processing the HR specialist erred by mailing in the incorrect form (i.e., it did not contain the signature of her husband concurring with her declination of the RCSBP) and, as a result, she was enrolled in the SBP.

2.  There is no evidence of record that shows the applicant was notified of her eligibility to receive Reserve retired pay at age 60.  Thus, she was not eligible for the RCSBP when she retired from active duty on 25 February 2013 and was placed on the temporary disability retired list; she was eligible for the SBP.

3.  Records show the applicant and an HR specialist completed a DD Form 2656 on 9 January 2013, the day she out-processed and signed her DD Form 214.
However, it appears the applicant's spouse was not notified of the applicant's election to decline SBP because there is no evidence of record that shows a spouse concurrence letter was sent to the applicant's spouse.

4.  The DD Form 2656 on file at the installation and DFAS shows the applicant was married and that she elected not to participate in the SBP; however, the document is absent the spouse's signature.  (As such, it is not notarized.)  Consequently, the applicant's SBP election correctly defaulted to automatic spouse coverage.

5.  There is no evidence of record that shows the applicant's spouse was notified of the applicant's election to decline SBP or that he concurred with the applicant's decision not to participate in the SBP.

6.  The DD Form 2656-5 that the applicant provides in support of her request is dated 11 April 2013, one month after the effective of her retirement and it applies to the RCSBP (not the SBP).  However, it does show that her spouse concurred with her election to not participate in the SBP, and his signature is notarized.  In addition, her application to this Board is dated 12 April 2013.

7.  Based on the evidence of record, there appears to be an administrative error on the part of the government in this case.

8.  Therefore, there is sufficient evidence to support the applicant's requested relief.

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 she properly declined to participate in the SBP, with her spouse’s timely and notarized concurrence, and that any SBP premiums deducted from her pay be refunded to her 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)                                         AR20130007159



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ABCMR Record of Proceedings (cont)                                         AR20130007159



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