IN THE CASE OF:
BOARD DATE: 4 November 2014
DOCKET NUMBER: AR20140005006
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 his record to show he elected not to participate in the Survivor Benefit Plan (SBP).
2. The applicant states that during his retirement processing he declined SBP coverage. His wife sent in the information that she received and they were told the information was not received by the SBP office.
3. The applicant provides a notarized letter from his wife.
CONSIDERATION OF EVIDENCE:
1. The applicant retired from the Regular Army on 28 February 2014, in the rank of sergeant first class, after completing more than 21 years of active service.
2. During the processing of this case, on 7 April 2014, the Defense Finance and Accounting Service (DFAS) confirmed the applicant's retired account was still not established and appeared to be missing a valid SBP election. DFAS provided the following documentation:
a. DD Form 2656 (Data for Payment of Retired Personnel) that the applicant signed on 18 December 2013. The form shows the following:
* Section VIII (Dependency Information) lists his spouse as the same individual completing the notarized letter of concurrence
* Section IX (SBP Election) shows he completed item 26 (Beneficiary Category(ies)) electing not to participate in SBP and he indicated he had eligible dependents under the plan
* Section XI (Certification) shows the form was certified on 18 December 2013
* Section XII (SBP Spouse Concurrence) does not show his spouse concurred with his SBP election
b. On 5 March 2014, the official who certified his DD Form 2656 stated that on 18 December 2013 a letter was sent by certified mail to the applicant's spouse. This letter provided information concerning the SBP to assist the applicant's spouse in making her decision to concur or non-concur with the applicant's decision not to participate in the SBP. The letter explained the options available and the effects of those options and that retired pay stops on the day the retiree dies. The official stated that as of the date of the statement, a signed copy of the letter to acknowledge receipt had not been received by that office, nor had concurrence been provided. Certified mail receipts pertaining to this correspondence were attached. The evidence indicates the applicant's spouse signed for the certified mail on 4 January 2014.
3. The applicant submits a notarized letter from his wife, dated 17 March 2014. In this letter, she indicates that she agrees with the applicant's decision not to participate in SBP.
4. Public Law 92-425, the SBP, enacted 21 September 1972, 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 to decline to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse coverage (or child only coverage, if applicable).
5. Public Law 99-145, enacted on 8 November 1985, but effective 1 March 1986, requires a spouses written concurrence for a retiring members election that provides less than the maximum spouse coverage.
DISCUSSION AND CONCLUSIONS:
1. The applicant completed a DD Form 2656 on 18 December 2013, more than 2 months prior to his retirement. He elected not to participate in the SBP. The evidence indicates his spouse failed to properly concur with his SBP election in a timely manner. Therefore, coverage automatically defaulted to full spouse coverage.
2. There is no evidence of error in this case. However, in light of the available evidence, it would be appropriate as a matter of equity to correct his record to show his spouse submitted her concurrence with his election not to participate in the SBP prior to his retirement.
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 his spouse properly concurred with his election not to participate in the SBP in a timely manner
* showing the election was received, approved, and timely processed
* reimbursing any SBP premiums he may have paid as a result of the above corrections
_______ _ __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) AR20140005006
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20140005006
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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