IN THE CASE OF:
BOARD DATE: 12 August 2014
DOCKET NUMBER: AR20140000166
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 submitted a DD Form 2656 (Data for Payment of Retired Personnel) on 27 July 2012 in which she elected not to participate in the SBP. However, the form was not notarized. On 28 September 2012, a new form was completed and mailed to the Defense Finance and Accounting Service (DFAS). DFAS did not grant her request.
3. The applicant provides her November 2013 Retiree Account Statement and a post-retirement DD Form 2656.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Puerto Rico Army National Guard (PRARNG) on 28 June 1982. She served through multiple extensions, in a variety of assignments, and she attained the rank/grade of master sergeant (MSG)/E-8.
2. On 31 July 2012, she was retired from the Army by reason of sufficient (active duty) service. On 1 August 2012, she was placed on the Retired List in her retired grade of MSG.
3. She provides a DD Form 2656 dated 27 June 2012 that shows she elected not to participate in the SBP. Although this form contains her signature and the signature of a spouse, it is not notarized. Section XII warns that the spouses signature must be notarized.
4. She also provides an original DD Form 2656 dated 28 September 2012 that show she elected not to participate in the SBP. She and her spouse authenticated this form with their signatures and the spouse's signature is notarized.
5. Her November 2013 Retiree Account Statement shows she currently has SBP coverage for spouse and children and she had made 16 payments toward her 360 months of paid-up SBP coverage.
6. 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.
7. 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, a member of the ARNG, entered active duty in February 2005 and served on active duty until she retired in July 2012. Because she retired by reason of sufficient active duty service for retirement, she made an SBP election in connection with this retirement wherein she elected not to participate in the SBP. However, her election required her spouse to concur and his concurrence (signature) be notarized. This did not happen, which rendered her June 2012 election invalid. As such, her coverage defaulted to "spouse" coverage as required by law.
2. Her post retirement DD Form 2656, dated September 2012, was also invalid. By law and regulation, married Soldiers who retire from the Army must take action to decline SBP coverage prior to retirement. She retired on 31 July 2012; however, she did not make a valid election before her retirement.
3. The applicant retired on 31 July 2012. By law, 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 timeframe in which she is allowed to terminate her participation in the SBP begins in July 2014 . Her spouse's concurrence is required, and no premiums will be refunded to those who opt to disenroll. She may apply directly to DFAS.
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) AR20140000166
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ABCMR Record of Proceedings (cont) AR20140000166
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