IN THE CASE OF:	

		BOARD DATE:	  22 October 2015

		DOCKET NUMBER:  AR20150007997 


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 Survivor Benefit Plan (SBP) coverage for spouse and child(ren), based on the full amount, on 1 January 2015, prior to retirement.

2.  The applicant states:

	a.  When he completed the DD Form 2656 (Data for Payment of Retired Personnel), the Retirement Services Officer (RSO) asked him and his spouse if they wanted SBP coverage.  They were both uneducated about this program and unsure what to elect.  The RSO stated they could decline coverage and change their election later.  He retired on 31 December 2014.  When he returned in March 2015 and asked the RSO how long he had to make a decision for the SBP, the RSO told him it was too late as he had already retired.  There was no malicious intent by the RSO.  He (the applicant) simply did not fully understand the dynamics of the SBP. 

	b.  He has since learned much about the SBP and now understands it had to have been done prior to retirement.  He also understands if his request is approved, he would owe premiums back to the date of retirement which could create a debt.  He and his spouse have been together since they were in 
10th grade.  She has been a supportive spouse throughout 27 years of service.  He wants to support his wife in the event something happens to him.  

3.  The applicant provides his DD Form 2656.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 30 September 1988 and he held multiple military occupational specialties.  He and his spouse Pamela were married on 27 September 1988. 

2.  He served through multiple reenlistments in a variety of stateside and overseas assignments and he attained the rank/grade of master sergeant (MSG)/E-8.  

3.  On 5 September 2014, in connection with his upcoming retirement, he completed a DD Form 2656 wherein he stated he was married to Pamela and they had one dependent child (was born in September 1998).  He placed and "X" in the block that reads "I elect not to participate in SBP."  

* His spouse Pamela indicated she was counseled and concurred with his decision to decline coverage
* An RSO counseled both parties and placed her signature on the form
* The applicant and his spouse authenticated this form with their signatures 

4.  He retired on 31 December 2014 and he was placed on the Retired List in his retired rank/grade of MSG/E-8 on 1 January 2015.

5.  He provides the same DD Form 2656 he completed during his RSO briefing but marked the block that reads "I elect coverage for spouse and children" and the block "I elect coverage based on full gross pay." 

6.  Title 10, U.S. Code, section 1448 covers SBP: 

	a.  Section 1448(a)(1) (General Rules for Participation in the Plan - Name of plan; eligible participants) states the program established by this subchapter shall be known as the SBP.  Persons entitled to retired pay are eligible to participate in the Plan.

	b.  Section 1448(a)(2) (Participants in the plan — Standard annuity participants), the Plan applies to a person who is eligible to participate in the Plan under paragraph (1)(A) and who is married or has a dependent child when he becomes entitled to retired pay, unless he elects (with his spouse’s concurrence, if required under paragraph (3)) not to participate in the Plan before the first day for which he is eligible for that pay.  

	c.  Section 1448(a)(3)(A) (Elections), spousal consent for certain elections respecting standard annuity.  A married person who is eligible to provide a standard annuity may not without the concurrence of the person’s spouse elect not to participate in the Plan; to provide an annuity for the person’s spouse at less than the maximum level; or to provide an annuity for a dependent child but not for the person’s spouse.

	d.  Section 1448(a)(4) (Irrevocability of elections - Standard annuity), an election under paragraph (2)(A) is irrevocable if not revoked before the date on which the person first becomes entitled to retired pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant retired from active duty on 31 December 2014.  He was married at the time.  In connection with his retirement, he made a decision and elected not to participate in the SBP.  His spouse was counseled and concurred with his decision to decline participation in this plan.

2.  However, it appears the applicant did not fully understand this program or the time constraints attachments to making an election.  He states the RSO told him he could come back and change his election.  The applicant misunderstood this to mean he could come back at any time instead of coming back no later than his retirement date.  This is further confirmed by the fact the applicant recognized the error immediately after retirement.  

3.  The intent of the SBP is to ensure the survivor(s) of a military retiree be provided reasonable and continuous income replacement in the event a retiree dies.  Although there is no statutory or regulatory error in his election, due to the ambiguous advice of the RSO regarding the timing of any change of heart with respect to his election, as a matter of equity only, his records should be corrected to show he elected SBP coverage for spouse and children based on the full amount before his retirement date. 

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:

* amending the applicant's DD Form 2656 to show he elected "spouse and children" SBP coverage based on his full gross pay, on 5 September 2014
* collecting any retroactive premiums due 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)                                         AR20150007997



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ABCMR Record of Proceedings (cont)                                         AR20150007997



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