BOARD DATE: 27 May 2014
DOCKET NUMBER: AR20130018086
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 she and her spouse signed a DD Form 2656 (Data for Payment of Retired Personnel) declining participation in the SBP. It was notarized and turned in to the finance office at Fort Polk, Louisiana.
3. The applicant further states, in effect, that she received a bill from the Defense Finance and Accounting Service (DFAS) showing 2 months of SBP premiums were deducted from her retired pay.
4. The applicant provides a copy of her SBP premium bill from DFAS and
DD Forms 2656, dated 20 and 27 August 2013. She also provides a copy of her Marriage License.
CONSIDERATION OF EVIDENCE:
1. The applicant and her spouse Floyd were married on 8 September 2001.
2. The applicant enlisted in the Regular Army on 23 April 2008 and held military occupational specialty 92A (Automated Logistical Specialist). She served in a variety of stateside and overseas assignments and she attained the rank/grade of specialist (SPC)/E-4.
3. On 19 July 2012, in anticipation of her upcoming retirement, she completed a DD Form 2656. She indicated she was married to Floyd and they had 3 dependent children. She elected not to participate in the SBP. The applicant and a witness signed this form; however, her spouse did not sign it and there is no notary signature or seal.
4. She retired on 24 August 2012 and was placed on the Retired List in her retired rank/grade of SPC/E-4 on 25 August 2012.
5. In May 2013, DFAS sent the applicant a bill indicating that she owed SBP premiums in the amount of $684.56, which were due as of 28 May 2013.
6. On 8 August 2013, her spouse signed a notarized personal statement requesting termination of the SBP coverage. On 20 August 2013, the applicant's spouse signed a DD Form 2656 indicating his concurrence with the applicant's election not to participate in the SBP. However, this form does not contain the applicant's or witness signatures. It does contain a notary signature and seal.
7. On 27 August 2013, the applicant's spouse signed a second notarized DD Form 2656 indicating his concurrence with the applicant's election not to participate. This form contains all of the appropriate signatures and a Notary Public Seal.
8. According to DFAS, as of 5 May 2014 no money had been collected from the applicant because she does not collect retired pay due to a full Department of Veterans Affairs waiver. However, she does have a direct remittance balance in the amount of $1,816.85 that she receives a bill in the mail for.
9. 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.
10. Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouses written concurrence for a retiring members election that provided less than maximum spouse coverage.
DISCUSSION AND CONCLUSIONS:
1. The applicant retired on 24 August 2012. Prior to retirement on 19 July 2012, she completed a DD Form 2656 electing not to participate in the SBP. However, the form was incomplete because her spouse did not sign the form and it did not contain a notary signature or seal. Therefore, according to the established law her SBP election reverted to automatic coverage for her spouse.
2. The applicant's intent was clearly not to participate in the SBP. She was a young Soldier retired for disability. Her spouse has since provided his concurrence with the declination. She should not be penalized for this administrative error. As a matter of equity, her records should be corrected to show she elected not to participate in the SBP, her spouse timely concurred with this election, and officials at the DFAS timely processed her election.
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 DFAS timely received and processed the applicant's election declining SBP participation
* reimbursing any premiums already paid by the applicant, if applicable, 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) AR20130018086
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ABCMR Record of Proceedings (cont) AR20130018086
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