BOARD DATE: 25 November 2014
DOCKET NUMBER: AR20140002610
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 the records of her deceased husband, a former service member (FSM), to show he elected Survivor Benefit Plan (SBP) spouse-only coverage.
2. The applicant states:
* an invalid election was made
* she was shocked when the FSM's retirement pay was stopped after his death
* entries on the FSM's DD Form 2656 (Data for Payment of Retired Personnel) are unclear and a determination should not have been made
* the mistake would have been caught had the FSM listed dependent children
* the DD Form 2656 was received and processed and the military should have contacted the FSM to clarify his intentions
3. The applicant provides:
* marriage license
* death certificate
* DD Form 214 (Certificate of Release or Discharge from Active Duty) Worksheet
* Illinois Army National Guard Orders 182-156, dated 1 July 2005
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* DD Form 2656
CONSIDERATION OF EVIDENCE:
1. On 27 March 1995, the FSM was notified of his eligibility for retired pay at age 60. There is no indication he made a Reserve Component SBP election at that time. Accordingly, his election of coverage was deferred until he reached age 60 and applied for retired pay.
2. The applicant and FSM were married on 13 December 1996.
3. On 25 February 2006, the FSM completed a DD Form 2656 in connection with his pending retirement at age 60. He listed the applicant as his spouse. His DD Form 2656 shows in:
* Section V (Designation of Beneficiaries for Unpaid Retired Pay) blank
* Section IX (SBP Election)
* item 26a (Beneficiary Categories l Elect Coverage for Spouse Only) marked "X" for Do Not Have Dependent Children
* item 27a (Level of Coverage I Elect Coverage Based on Full Gross Pay Without Supplemental SBP) marked "X" after the statement instead of in the designated block
* Section XI (SBP Spouse Concurrence) and Section XII (Certification) the applicant, witness, and FSM all signed the form
4. The FSM reached age 60 on 10 November 2006. He was retired and placed on the Retired List effective 10 November 2006.
5. The FSM died on 20 April 2013.
6. On 29 October 2014, the Defense Finance and Accounting Service (DFAS) confirmed the FSM's account showed no SBP beneficiary. DFAS provided a DD Form 2656 identical to that provided by the applicant.
7. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving family members. The election must be made prior to the effective date of retirement or else coverage automatically defaults to spouse coverage, if applicable.
DISCUSSION AND CONCLUSIONS:
1. Although the election is not marked in the designated block on his DD Form 2656, the FSM clearly elected coverage based on his full gross pay without supplemental SBP. He had no minor children at the time and did not name an insurable interest beneficiary. Therefore, his intention could only have been to elect spouse-only coverage.
2. It appears DFAS' refusal to honor the form as a valid election is based on the fact that the applicant signed the DD Form 2656 since her signature would only have been necessary in the event the FSM was electing something less than full spouse coverage. However, neither box to elect coverage of any type nor the box to decline coverage is properly marked.
3. The form is ambiguous at best and that ambiguity should be resolved in the applicant's favor. The applicant is therefore entitled to the requested relief.
BOARD VOTE:
__X______ ___X_____ __X___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined the evidence presented is 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 to show
he submitted a request for spouse-only SBP coverage on 25 February 2006 and it was accepted by DFAS and processed in a timely manner.
__________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) AR20140002610
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ABCMR Record of Proceedings (cont) AR20140002610
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