IN THE CASE OF:  	  

		BOARD DATE:  30 July 2015	  

		DOCKET NUMBER:  AR20140019757 


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 the Survivor Benefit Plan (SBP) for his spouse in a reduced amount vice the full base amount.

2.  The applicant states, in effect:

	a.  The reason he was enrolled in SBP for full coverage was due to a mistake by his wife and himself.  At the time he was preparing to retire, his wife was residing in North Carolina while he was still stationed at Fort Stewart, Georgia.  Accordingly, the Fort Stewart Retirement Services Office (RSO) mailed his wife a packet of information about SBP.  Included in the packet was a letter of acknowledgement.  As her enclosed letter explains, she thought the letter was the document required to elect reduced SBP coverage.  She did not see the SBP election concurrence statement at the end of the packet.

	b.  They did not know about the problem until the last week of June when he received his first retirement leave and earnings statement (LES) and saw that the Defense Finance and Accounting Service (DFAS) was withholding full SBP coverage.  He immediately tried to contact Ms. JL, at the Fort Stewart RSO to inquire about it; but he was not able to make contact with her until 7 July 2014.  She explained that she never received the required election documents for reduced coverage.  He sent her a signed letter from his wife and he thought the problem was fixed.  

	c.  On 8 July 2014, Ms. JL explained there was also an SBP election concurrence statement and when that statement was not received he was automatically enrolled in SBP full coverage.  On 9 July 2014, he received another SBP election concurrence statement from the Fort Stewart RSO.  On 10 July 2014, his wife signed it and had it notarized and on 13 July 2014 he emailed the completed statement to Ms. JL.  On 14 July 2014, she sent the statement to DFAS.   

	d.  On 2 September 2014, he had not received a response and contacted Ms. JL and asked if she heard anything but she had not.  On 12 September 2014, he received a call from a Mr. D_______, Fort Stewart RSO.  He was informed that DFAS could not fix the issue and he had to apply to the Army Board for Correction of Military Records (ABCMR).  He requests prompt consideration of this matter.  Being enrolled in SBP for full coverage and paying the corresponding premium has been an unexpected financial burden that his wife and he would like to see resolved.

3.  The applicant provides:

* two letters, dated 19 February and 7 May 2014
* a Spouse SBP Election Concurrence Statement 
* two pages of email dated 2 September and 28 October 2014
* a letter from his spouse, dated 29 October 2014

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 6 May 1982.  He served through multiple reenlistments and/or extensions and was promoted to the rank/grade of command sergeant major (CSM)/E-9 on 1 January 2008.

2.  He provides a letter to his spouse, dated 19 February 2014, from the Fort Stewart RSO, wherein his spouse was informed, in effect:

   a.  The applicant had requested retirement from active duty on 31 May 2014.  This letter explained the different categories of SBP and stated, in part, upon retirement, he may elect SBP for:  (1)  Maximum spouse coverage.  
(2)  Maximum spouse and child coverage.  (3)  Coverage to provide less than the maximum SBP annuity - May not be elected unless she agreed in writing. 
(4)  Dependent child coverage only - May not be elected unless she agreed in writing.  (5)  No coverage - May not be elected unless she agreed in writing.


   b.  The decision the applicant made regarding his SBP election was irrevocable; however, by law, he may not elect certain options unless she agreed to that choice in writing.  The options were listed above.  Under law, should he choose one of these options and she non-concurred with that choice, his SBP election would automatically be established at full spouse coverage.  An enclosed chart showed the estimated annuities payable.  An enclosed SBP Trifold described the plans in more detail.  The applicant’s spouse was urged to read it carefully, the decision the applicant made regarding SBP was critical and had a lifetime impact on her and the family.

3.  In conjunction with his upcoming retirement, on 6 May 2014, he completed a DD Form 2656 (Data for Payment of Retired Personnel) wherein he indicated he was married, had no dependent children, and he was electing SBP spouse only coverage in the reduced amount of $300.  He signed and dated this form on 6 May 2014 and it was witnessed by an RSO member.  

4.  This form states, in part, in Section XII (SBP Souse Concurrence) - Required when member is married and elects children only coverage, does not elect full spouse coverage, or declines coverage.  The spouse's signature must be notarized.  Item 32b (Spouse - Signature) and item 33 (Notary Witness) of this form is blank.

5.  The applicant provides a letter, dated 7 May 2014, that his spouse received from the Fort Stewart RSO, wherein his spouse was informed, in effect:

	a.  The applicant would retire from the military, effective 1 June 2014.  Retiring Soldiers, by law, must make an SBP election prior to retirement.  The applicant elected spouse and child (i.e. spouse only) coverage based on less than his full retirement pay.

	b.  The law requires the spouse of Soldiers who at retirement elect less than spouse coverage based on their full retired pay to concur with the election or the Soldier will receive automatic spouse SBP coverage based on their full retirement pay.  She must complete the reduced Spouse SBP Concurrence Statement and return it to this office prior to 31 May 2014, the applicant’s retirement date.  Her signature on the Spouse SBP Concurrence Statement must be witnessed by a Notary Public or her concurrence would be invalid.  If she non-concurred, failed to return the spouse statement prior to the applicant’s retirement date, or did not have her signature witnessed by a Notary Public, the she would receive full spouse SBP coverage based on full retired pay.


	c.  The applicant’s SBP election based on less than his full retired pay would provide a monthly annuity of $165 for which he would pay a monthly premium of $19.50.  If she non-concurred with the applicant's election, the applicant would receive automatic spouse SBP full coverage.  This would provide a monthly annuity of $2,927.65 for which he would pay a monthly premium of $346.

6.  The applicant provides an acknowledgement of receipt of the letter from the RSO, signed by his spouse and notarized on 29 May 2014.  

7.  On 31 May 2014, he was honorably retired from active duty in the rank of CSM and he was placed on the Retired List on 1 June 2014.  He completed 32 years and 25 days of creditable active service.

8.  He also provides:
   
   a.  A Spouse SBP Election Concurrence Statement, wherein his spouse initialed the block that stated she concurred with her spouse's SBP election of reduced coverage.  She signed this statement and her signature was notarized on 10 July 2014.  
   
   b.  A letter from his spouse, dated 29 October 2014, wherein she stated, in part, that she reviewed and read the 19 February 2014 letter from the RSO but did not realize there was a spouse concurrence statement in the packet.  She read the second 7 May 2014 letter from the RSO but did not review the attached information because it appeared to be identical to the first letter.  It was never her intent to elect full SBP coverage; they made the decision to elect reduced SBP coverage.

9.  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.  An election to decline to participate in the SBP or elect SBP in a reduced amount, must be made and have the spouse's concurrence made prior to the effective date of retirement or else coverage automatically defaults to full spouse coverage.  

10.  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.  There is no option to change an SBP election from full base amount to a reduced amount during that period.
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that in conjunction with his retirement the applicant completed a DD Form 2656 on 6 May 2014 and elected SBP spouse only coverage in the reduced amount of $300.  However, due to a misunderstanding on the part of his spouse, she supplied the RSO a notarized acknowledgement of receipt of the notification of his election on 29 May 2014; however, she did not provide a notarized concurrence statement.  As a result, he was automatically enrolled in SBP for full coverage.  

2.  When the discrepancy was noted by the applicant, he immediately contacted the RSO and provided a notarized Spouse SBP Election Concurrence Statement, dated 10 July 2014.  As this form was received after his retirement date of 31 May 2014, DFAS would not accept this form.

3.  His spouse has since confirmed she always concurred with his election for reduced spouse coverage and that the mistake was due to her failure to completely comprehend the SBP information provided by the RSO.  The applicant has provided a properly notarized statement from his spouse, dated 10 July 2014, wherein she verified she concurred with his election for SBP coverage in a reduced amount as of the date he retired.  Therefore, as a matter of equity, it would be appropriate to correct his records to show he elected SBP spouse coverage in the reduced amount of $300 at the time of his retirement and his spouse concurred with his election at that time.  

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 properly elected SBP spouse only coverage in the reduced amount of $300 at the time he was retired and his spouse properly concurred with his election prior to retirement
* paying him all excess monies already deducted from his retired pay for SBP spouse only full coverage



      __________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)                                         AR20140019757





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ABCMR Record of Proceedings (cont)                                         AR20140019757



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