IN THE CASE OF
BOARD DATE: 26 June 2014
DOCKET NUMBER: AR20130017989
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, in effect, termination of his participation in the Survivor Benefit Plan (SBP) and refund of his SBP premiums.
2. He states his spouse was unable to attend separation briefings due to a geographical separation. His spouse was under the assumption that a no response to a request of SBP certification indicated SBP coverage would not be initiated.
3. The applicant provides a DD Form 2656 (Data from Payment of Retired Personnel) dated 20 December 2012, Defense Finance and Accounting Service letter dated 6 June 2013, and a supporting statement.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 14 August 1984. He served in a variety of stateside and/or overseas assignments and he attained the rank/grade of sergeant major (SGM)/E-9.
2. On 14 February 2004, the applicant and his spouse, Sophia, were married.
3. On 20 December 2012, in anticipation of his upcoming retirement, he completed a DD Form 2656. He indicated he was married to Sophia and they had two dependent children. He elected not to participate in the SBP. He and a Retirement Services Officer (RSO) authenticated this form with their signatures on 20 December 2012. Section XI (SBP SPOUSE CONCURRENCE) of this form states, (Required when member is married and elects child(ren) only coverage, does not elect full spouse coverage, or declines coverage
Item 32 (SPOUSE) stated, I hereby concur with the Survivor Benefit Plan election made by my spouse
I have signed this statement of my free will. Item 32a (SIGNATURE), immediately below that concurrence, would have required her signature.
4. He retired on 28 February 2013 and he was placed on the Retired List in his retired rank/grade of SGM/E-9 on 1 March 2013.
5. In a supporting statement from the applicant's spouse Sophia, a retired sergeant first class SFC/E-7, dated 24 September 2013, she stated that she was not at the applicant's transition location at the time of his retirement and, therefore, could not personally sign the form declining the SBP. She added that an information packet was forwarded to her which she did not clearly understand. She perceived she was declining the benefits by not signing and returning the form, but the premiums were automatically deducted.
6. The applicant spouse had retired from the Regular Army on 1 January 2010 and was married to the applicant at the time.
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 28 February 2013. Prior to his retirement, on
20 December 2012, he completed a DD Form 2656 and indicated he did not
want to participate in the SBP. This election required his spouse's concurrence with her signature prior to the date he retired. His election, in the presence of a RSO, clearly shows he was counseled that his spouse's concurrence was required.
2. However, by his spouse's own admission, she did not sign or return the form perceiving that her actions would indicate that she was declining SBP. It is unknown why the applicant's spouse did not clearly understand the information that was provided to her concerning SBP, especially given that she herself was a recent active duty retiree and given that Section XII of the DD Form 2656 clearly noted that her concurrence and signature was required. In any case, she should have sought clarification of the information through her spouse, who had attended the separation briefings, or the point of contact numbers that are normally provided in the information packet.
3. There is no evidence to show a Government error or an injustice occurred. As such, the applicant is not entitled to correction of his records to show he declined to participate in SBP and his spouse concurred in a timely manner.
4. As cited above, the applicant has a 1-year period beginning on the second anniversary of the date on which his retired pay started to withdraw from SBP. A notarized statement from his spouse is required.
5. In view of the foregoing, there is no basis for granting his requested relief.
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) AR20130017989
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ABCMR Record of Proceedings (cont) AR20130017989
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