IN THE CASE OF:	   

		BOARD DATE:	  2 September 2014

		DOCKET NUMBER:  AR20140002188 


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, correction of her records to show she elected not to participate in the Survivor Benefit Plan (SBP) upon application for retired pay at age 60. 

2.  The applicant states, in effect, she has no spouse.  However, when she completed a DD Form 2656 (Data for Payment of Retired Personnel) with her retirement application, she erroneously checked the wrong box. 

3.  The applicant provides:

* June 1994 DD Form 1883 (SBP Election Certificate)
* August 1994 Retired Reserve orders
* 2012 DD Form 2656
* November 2013 Retiree Account Statement

CONSIDERATION OF EVIDENCE:

1.  The applicant was born in December 1952.  

2.  Having had prior service, she enlisted in the U.S. Army Reserve (USAR) on 30 May 1984.  She served in a variety of assignments and she attained the rank/grade of staff sergeant (SSG)/E-6. 


3.  It is unknown when she was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  However, on 24 June 1994, she completed a DD Form 1883 wherein:

* she stated that she was not married but had dependent children
* in the block to indicate the type of coverage she desired, she checked "None"
* in the "Options" block, she elected Option A (defer coverage) 

4.  On 25 June 1994, Headquarters, 88th U.S. Army Reserve Command published orders transferring her to the Retired Reserve effective 1 August 1994. 

5.  In July 2012, she submitted a DD Form 108 (Application for Retired Pay).  With this form, she completed a DD Form 2656 wherein she stated her marital status was single.  Additionally, she placed the following entries in:

* Item 26c (Beneficiary Category), an "X" in the "I do not have a spouse block"
* Item 27 (Level of Coverage), an "X" in the "I elect coverage based on the threshold amount in effect at the time of retirement" 
* Item 28 (Insurable Interest Beneficiary), her daughter's name, date of birth, and address
* Item 29 (continuation), she stated "item 27d only if my daughter is eligible" 
* She and a witness authenticated this form with their signatures, but item 33 (Notary Witness) was not accomplished

6.  On 17 July 2012, U.S. Army Human Resources Command published orders placing her on the Retired List effective on her 60th birthday (24 December 2012). 

7.  Her November 2013 Retiree Account Statement shows she has spouse SBP coverage with a cost of $58.82/month and she has paid 11 months toward her 360 months of paid up Reserve Component (RC)/SBP coverage. 

8.  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.  

9.  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.  By law and regulation, Soldiers who complete 20 or more years of service are issued a 20-year letter that informs them of their retirement eligibility and are offered the opportunity to enroll in the RCSBP.  The applicant completed an SBP Election Certificate in June 1994.  Although she had dependent children, she was not married.  She elected no coverage at the time and marked Option A.   By doing so, she deferred her election to age 60.

2.  When she submitted an application for retirement, she completed a DD Form 2656.  It shows she indicated she was single and elected her daughter as an insurable interest beneficiary, if eligible.  She and a witness signed this form.  When the Defense Finance and Accounting Service (DFAS) established her retired pay account, it appears they deemed this form invalid and defaulted her coverage to spouse.  

3.  There were two errors committed in her case.  One, the eligibility of her daughter as an SBP beneficiary is determined by several factors, including her age at the time of election, marital status, presence or absence of disability incurred before age 18, and other factors.  It was her responsibility to decide if her daughter was eligible.  The decision to enroll or disenroll from the SBP is a personal decision, made by the member.  Second, although this form is invalid, DFAS defaulted her coverage to spouse despite the clear indication that she was not married.  

4.  The applicant's intent was clearly not to participate in the SBP and 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 and DFAS officials timely received and 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
* showing DFAS timely received and processed the applicant's DD Form 2656 declining the SBP
* reimbursing all premiums already paid by the applicant 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)                                         AR20140002188



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ABCMR Record of Proceedings (cont)                                         AR20140002188



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