BOARD DATE:	  10 June 2014

		DOCKET NUMBER:  AR20130016893 


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) and reimbursement of the premiums she has paid.

2.  The applicant states that when she and her husband completed the SBP paperwork in February 2013 they were not given assistance in filling out the forms.   Both believed that they made the correct election on the form not to participate in the SBP; however, SBP premiums are being deducted from her Army retired pay.

3.  The applicant provides copies of the following documents:

* DD Form 2656 (Data for Payment of Retired Personnel) - back page
* Summary of Retired Pay Account
* a letter from her spouse

CONSIDERATION OF EVIDENCE:

1.  The applicant was born in August 1953.  She was appointed as a Reserve commissioned officer in the Army on 14 November 1975.  She attained the rank of lieutenant colonel.

2.  On 19 July 1996, the Chief, Retired Activities Division, U.S. Army Reserve Personnel Center, St. Louis, MO, notified the applicant that her eligibility for retired pay had been established upon attaining age 60 (a 20-year letter).  She was also advised of her entitlement to participate in the Reserve Component (RC) SBP (RCSBP) and she was provided program information.

3.  A DD Form 1883 (SBP Election Certificate) shows the applicant indicated she married Richard J. D---- on 6 August 1988 and she had one dependent child. She elected spouse and children coverage based on the full amount of retired pay with RCSBP Option B (Coverage at Age 60).  Section V (Additional Information), item 18 (Is this the only election of coverage you have submitted under the new Survivor Benefit Plan?), shows the applicant placed a checkmark in the "Yes" block.  The DD Form 1883 also shows the applicant, her spouse, and a witness placed their signatures on the document on 21 February 1997.

4.  An ARPC Form 3854 (RC Supplemental SBP (RC-SSBP) Election Certificate) shows the applicant elected to participate in the RC-SSBP with an additional 
10 percent coverage for her spouse.  The applicant placed her signature on the document on 21 February 1997.

5.  U.S. Army Human Resources Command, Fort Knox, KY, Orders C06-394463, dated 6 June 2013, placed the applicant on the retired list effective 25 August 2013.

6.  In connection with the processing of this case, the Defense Finance and Accounting Service (DFAS) was asked to verify information relevant to the applicant's SBP election, coverage, and participation.  DFAS provided a copy of the DD Form 2656 it has on file that was completed by the applicant and her spouse.  It shows in:
   
   a.  Section VIII (Dependency Information), that the applicant was married to Richard D---- and had two dependent children;

   b.  Section IX (SBP Election), item 26 (Beneficiary Category(ies)), the applicant failed to make an election in any of the categories (i.e., a through g), although she did indicate in block g (I Elect Not to Participate in SBP) with an "X" that, "I Do Have Eligible Dependents Under The Plan";

   c.  Section XI (Certification), item 30 (Member), the applicant and an witness each affixed their signature on the document on 25 February 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 32.b MUST NOT be before the date of the member's signature in item 30.b, 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."  It shows the applicant's signature, but it is lined-through with the entry "error" and initials "DSD."  This item also shows the spouse's signature and item 32b (Date Signed) shows the entry 13 February 2013.

    	(2)  Item 33 (Notary Witness) contains the notary witness's information, signature, and indicates personal appearance occurred on 13 February 2013.

7.  In support of her application, the applicant provides the following documents:

   a.  the back page of a DD Form 2656 that shows the same information in items 26 through 33, as described in paragraphs 6b through 6d, above.

   b.  Summary of Retired Pay Account, prepared on 26 August 2013, that shows the applicant elected RCSBP on 6 August 1997 that became effective 
25 August 2013 for spouse and children coverage with RC-SSBP.

   c.  A letter to the Army Review Boards Agency, dated 9 September 2013, that states, "This note is to confirm that I, Richard J. D----, [Social Security Number (SSN)], husband of [the applicant's rank, name, and SSN], acknowledge that we DO NOT choose the survivor benefit plan."  The applicant's spouse placed his signature on the document.  [It is not witnessed or notarized.]

8.  Public Law 92-425, the SBP, 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.  Retiring members and spouses were to be informed of the SBP options and effects.

9.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those service members who had qualified for reserve retirement, but were not yet age 60, to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A) elect to decline enrollment and choose at age 60 whether to start RCSBP participation; (B) elect that a beneficiary receive an annuity if the service member dies before age 60, but delay payment of it until the date of the member's 60th birthday; and (C) elect that a beneficiary receive an annuity immediately upon the service member's death if before age 60.  Failure to elect an option resulted in the default election of Option A.  Once a member elects either Option B or C in any category of coverage, that election is irrevocable.  Those participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP - it automatically rolls into SBP coverage.  If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60.

10.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her participation in the SBP should be terminated because she and her spouse were not given assistance in filling out the SBP form and both believed that they made the correct election on the form not to participate in the SBP in February 2013.

2.  Records show that, upon attaining eligibility for retired pay, the applicant elected to participate in the RCSBP with spouse and children coverage based on the full amount of retired pay with Option B (Coverage at Age 60).  Records also show the applicant, her spouse, and a witness signed the appropriate document on 21 February 1997.  In addition, on that same date, the applicant elected to participate in the RC-SSBP with an additional 10 percent coverage for her spouse.

3.  The DD Form 2656 completed in February 2013 and on file at DFAS (and the back page of the form the applicant provides) shows the applicant failed to make an election in any of the SBP beneficiary categories.  In addition, the applicant's spouse signed the form prior to the date the applicant signed the form.

   a.  The evidence of record shows, the date of the spouse's signature in item 32.b MUST NOT be before the date of the member's signature in item 30.b [emphasis added].

   b.  Thus, in addition to failing to elect an SBP beneficiary category, the applicant also failed to sign a properly completed form prior to (emphasis added) her spouse concurring with a specific SBP election.

   c.  However, these administrative errors are not the overriding issue in this case.

4.  The applicant was placed on the retired list on 25 August 2013.  Accordingly, the RCSBP and RC-SSBP elections the applicant had previously made for spouse and children coverage based on full retired pay became effective 
25 August 2013.

5.  An RCSBP election is irrevocable and participants do not make a new SBP election at age 60.  Therefore, the DD Form 2656 completed in February 2013 and the note that the applicant's spouse provides in support of her application to terminate SBP coverage, dated 9 September 2013, are insufficient to satisfy the legal and administrative requirements to support termination of the applicant's SBP.

6.  Based on the evidence of record, there does not appear to be administrative error on the part of the government in this case.

7.  Therefore, there is insufficient evidence to support the applicant's requested relief.

8.  The applicant is advised that 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.  However, the spouse's concurrence is required and no premiums will be refunded to those who opt to disenroll.  The applicant may obtain a copy of a DD Form 2656-2 (SBP Termination Request) from the Official Department of Defense Issuances (Forms Management Program) website at: http://www.dtic.mil/whs/directives/infomgt/forms/formsprogram.htm.

9.  The applicant is also advised that she and her spouse may contact the nearest Retirement Services Officer (RSO) for additional information and assistance regarding this matter.  A listing of RSOs by country, state, and installation is available on the Internet at:  http://www.armyg1.army.mil/RSO/rso.asp.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X______  ___X_____  __X___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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.




      _______ _  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)                                         AR20130016893



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ABCMR Record of Proceedings (cont)                                         AR20130016893



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