BOARD DATE:	  29 July 2014

		DOCKET NUMBER:  AR20130020241 


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:

	a.  On 2 August 2013, she completed a DD Form 2656 (Data for Payment of Retired Personnel) at the Retirement Services Office (RSO), Fort Huachuca, AZ, during out processing with Ms. M____ and elected not to participate in the SBP.  Her spouse was not available to sign the form and when she returned to Flagstaff, AZ, she had him sign the DD Form 2656, had his signature notarized, and mailed the form to Ms. M____.  Ms. M____ called her and informed her that the notary public put the wrong month on the form and it needed to be corrected.

	b.  When she received the form back from Ms. M____, it had white-out covering the wrong month on the form.  She took the form back to the notary public, had the notary public annotate the correct month the form was notarized, and sent it again to Ms. M____ for processing. 

	c.  On 9 October 2013, she received a letter from Ms. M____ stating that the Defense Finance and Accounting Service (DFAS) would not accept the form because of the incorrect date and the white-out.  Even though she elected not to participate in the SBP, premiums have been deducted from her retired pay since her retirement on 6 August 2013.  She requests her SBP be stopped and she be reimbursed for payments already made. 

3.  The applicant provides a letter and a notarized statement from her spouse.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 4 January 1961.  Having had prior active and Reserve service, she enlisted in the Arizona Army National Guard (AZARNG) on 13 September 1991.  

2.  On 12 June 2000, she entered active duty as a member of the ARNG in an Active Guard Reserve (AGR) status.  On 25 January 2010, she and her spouse were married.

3.  On 1 October 2010, the AZARNG issued her a 20-Year Letter.  This memorandum notified her that she had completed the required years of service and she would be eligible for retired pay upon application at age 60.  The memorandum also notified her that she was entitled to participate in the Reserve Component SBP (RCSBP) and had 90 days from receipt of the letter to make her election; failure to meet the requirement would result in full coverage for her spouse and children.  It informed her that a DD Form 2656-5 (RCSBP Election Certificate) was enclosed.

4.  Her records contain a DD Form 2656-5, dated 3 October 2010, wherein she indicated she was married at the time with no dependent children.  This form shows she elected "spouse only" full coverage under Option C (Immediate Coverage).  

5.  She was retired from active duty on 5 August 2013 by reason of permanent disability in the rank of sergeant first class.

6.  On 9 January 2014, by email, an official with the DFAS, Retired and Annuity Pay Branch, verified the applicant had automatically been enrolled for "spouse only" SBP coverage.

7.  The DFAS official also provided a DD Form 2656 wherein the applicant indicated she was married at the time with no dependent children.  This form shows she elected not to participate in the SBP.  The applicant signed this form on 30 July 2013 and her signature was witnessed by Ms. M____ on 30 July 2013.  Her spouse signed this form on 5 August 2013 and the notary public signed this form to verify she witnessed his signature and dated the form 5 July 2013.  

8.  The applicant provides a letter, dated 9 October 2013, to her from Ms. M____, RSO, Fort Huachuca, AZ, wherein she stated she had received the corrected copy of the DD Form 2656 but DFAS would not accept the form because of the incorrect date from the notary public and because it clearly had white-out on the form.

9.  The applicant provides a notarized statement from her spouse, dated 11 July 2014, wherein he stated he agreed with the applicant's decision to decline SBP from the date of her discharge on 5 August 2013.

10.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for Reserve retirement but were not yet age 60 (and participate in SBP), 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 SBP participation; (B)  elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  

11.  Title 10, section 1447(3) defines the RC annuity as, in effect, an annuity provided by virtue of being eligible for RC retired pay but for the fact they are under 60 years of age.  It states, in part, once a Reservist retires under an active duty retirement law, they are no longer eligible for RC retired pay or RCSBP.  When the retirement is under an active retirement law, the election is no longer based on the RCSBP election and they must make a new SBP election.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that in conjunction with her disability retirement the applicant completed a DD Form 2656 on 30 July 2013 and elected not to participate in the SBP.  However, although her spouse signed the DD Form 2656 on 5 August 2013 indicating he concurred with her election, the notary public dated the form 5 July 2013 as the date she witnessed his signature.  

2.  In addition, it appears that when the error in dates was noted, the RSO official at Fort Huachuca added white-out to the DD Form 2656 and sent it again to the applicant to have her spouse's signature notarized a second time when she should have advised the applicant to submit a new notarized statement.  As a result, DFAS would not accept the corrected DD Form 2656 because of the white-out on the form.

3.  The applicant has provided a properly notarized statement from her spouse, dated 11 July 2014, wherein he verified he concurred with her election to decline SBP enrollment as of the date she retired.  Therefore, as a matter of equity, it would be appropriate to correct her records to show she elected to decline SBP coverage at the time of her retirement and her spouse concurred with her election at that time.  

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 properly elected to decline SBP coverage at the time she was retired and her spouse properly concurred with her election 
* paying her all monies already deducted from her retired pay for SBP coverage



      ___________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)                                         AR20130020241





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ABCMR Record of Proceedings (cont)                                         AR20130020241



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