IN THE CASE OF:
BOARD DATE: 5 February 2015
DOCKET NUMBER: AR20140010458
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 record to show he elected not to participate in the Survivor Benefit Plan (SBP).
2. The applicant states upon out-processing from active duty, he elected not to participate in the SBP. His spouse was unable to accompany him to Fort Carson, CO for his out-processing; however, he was informed by Ms. C______ H___ that she would send his spouse a letter to sign. They never did receive a letter which resulted in his spouse signing and notarizing the election form after he was separated from service.
3. The applicant provides:
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 2656 (Data for Payment of Retired Personnel)
* a letter
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Army National Guard on 30 March 2009. Evidence shows he served in Afghanistan for the period 22 June 2009 to 26 April 2010.
2. His record contains a DD Form 214 which shows he was honorably retired by reason of a permanent disability on 26 April 2013.
3. The applicant provides a notarized DD Form 2656, dated 17 April 2013. This form shows he elected not to participate in the SBP. On 26 June 2013, his spouse concurred with the SBP election and a notary official authenticated the form.
4. 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 dependents. The election must be made prior to the effective date of retirement or else coverage automatically defaults to spouse coverage, if applicable.
5. Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse's written concurrence for a retiring member's election that provides less than the maximum spouse coverage.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant elected not to participate in the SBP and he was retired due to permanent disability on 26 April 2013.
2. By law and regulation, married Soldiers who retire from the Army must take action to decline SBP. Here, it appears his spouse was unable to accompany him at the time he out-processed and elected not to participate in the SBP.
3. His application to the Army Board for Correction of Military Records clearly indicates that he is electing not to participate in the SBP. He and his spouse submitted a notarized DD Form 2656 agreeing with his election not to participate in the SBP within 2 months of his retirement date.
4. Therefore, in the interest of equity, the applicant's records should be corrected to show he elected not to participate in the SBP. The applicant's spouse's vested interest in the SBP election has been satisfied through the submission of the notarized DD Form 2656.
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:
a. showing the applicant completed a DD Form 2656 electing not to participate in the SBP and that his spouse concurred with his decision, with any required notarizations, prior to his 26 April 2013 retirement date and that the form was accepted by the Defense Finance and Accounting Service and
b. as a result of this correction, reimbursing him any premiums already paid.
___________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) AR20140010458
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ABCMR Record of Proceedings (cont) AR20140010458
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