IN THE CASE OF
BOARD DATE: 24 April 2014
DOCKET NUMBER: AR20140005271
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 his records to show he elected not to participate in the Survivor Benefit Plan (SBP).
2. The applicant states he completed a DD Form 2656 (Data for Payment of Retired Personnel) on 6 November 2013 and elected to decline the SBP. At the time, his daughter was undergoing a transplant and his son was a donor. He had every intention to return the election on time but he and his spouse were overwhelmed with the hospitalization and the multiple doctor appointments. It slipped his mind to return this form before his retirement date. His wife had initially signed this form on 6 November 2013 but the form was not notarized. As a result, she had to white out her signature and the date and then re-sign this form on 5 March 2014 in front of the notary public.
3. The applicant provides his retirement orders, DD Form 2656, and medical documents.
CONSIDERATION OF EVIDENCE:
1. The applicant and his spouse Yolanda were married on 30 November 1995.
2. He enlisted in the Regular Army on 28 January 1992 and held military occupational specialty 42A (Human Resources Specialist). He served in a variety of stateside or overseas assignments and he attained the rank/grade of sergeant first class (SC)/E-7.
3. On 6 November 2013, in anticipation of his upcoming retirement, he completed a DD Form 2656. He indicated he was married to Yolanda and they had 3 dependent children. He elected not to participate in the SBP. He and a Retirement Services Officer (RSO) authenticated this form with their signatures on 6 November 2013.
4. He retired on 31 January 2014 and he was placed on the Retired List in his retired rank/grade of SFC/E-7 on 1 February 2014.
5. On 5 March 2014, after his retirement, his spouse, Yolanda, signed the DD Form 2656 indicating her concurrence with his election to not participate in the SBP.
6. The applicant provides medical documentation confirming his daughter was under the care of Children's National Medical Center and she had certain medical procedures/treatments performed.
7. 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.
8. 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 retired on 31 January 2014. Prior to his retirement, on 6 November 2013, he completed a DD Form 2656 and indicated he did not want to participate in the SBP. This election required his spouse's concurrence with her signature prior to the date he retired. His election, in the presence of a Retirement Service Officer, clearly shows he was counseled that his spouse's concurrence was required.
2. However, although the decision to enroll in or disenroll from the SBP is a personal decision, and although there is no evidence the applicant and his spouse were misled into signing up for this program, it appears they were both overcome by the events surrounding their daughter's hospitalization and/or medical treatment at the time.
3. The applicant's intent was clearly not to participate in the SBP and he should not be penalized for this administrative error. As a matter of equity, his records should be corrected to show he elected not to participate in the SBP, his spouse timely concurred with this election, and officials at the Defense Finance and Accounting Service (DFAS) timely processed it.
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, and that his spouse properly concurred with his decision on the same date
* showing DFAS timely received and processed the applicant's DD Form 2656 declining the SBP with the spouse's concurrence
* 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) AR20140005271
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20140005271
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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