PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            20 November 2003  
	DOCKET NUMBER:  AR2003087970

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn Langston		Chairperson	
	Ms. Linda D. Simmons		Member	
	Mr. Robert Duecaster		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his records be corrected to show that he declined to participate in the Survivor Benefit Plan (SBP).

3.  The applicant states he was briefed about the SBP prior to his retirement.  He was told that his spouse had the option of either taking the SBP or refusing it.  If she refused the SBP, she had to sign the form and return it to the retirement section.  He asked if he needed to sign the form and he was told that only his spouse had to sign it because she would be the one to receive the money.  His spouse signed the form and he returned it to the retirement section.  When he retired on 1 August 1995, he thought everything was OK.  On 1 September 1995, however, he found out that SBP premiums were being taken out anyway.  When he called the retirement section, they told him then that he was supposed to sign the form also.  When he asked how he could stop the SBP, he was informed that he could not stop it unless he was divorced or his spouse died.  He did not want the SBP from the beginning and he has been trying to stop it since then.  He was divorced on 26 May 1999 and he has been reimbursed from that point on.  He would like to be reimbursed from the time he retired up to his divorce.

4.  The applicant’s military records show that he enlisted in the Regular Army on 23 July 1975.  He retired on 1 August 1995.

5.  The applicant's DD Form 2656 (Data for Payment of Retired Personnel) was obtained from the Defense Finance and Accounting Service – Cleveland Center (DFAS-CL).  In section VII, the applicant elected not to participate in the SBP.  On 5 July 1995, the applicant's spouse signed in section VII concurring with his election to decline to participate in the SBP.  A member of the 20th Support Group witnessed her signature.  The applicant did not sign the form in section IX.

6.  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.  Retiring members and spouses were to be informed of the SBP options and effects.  An election, once made, is irrevocable.

7.  Public Law 99-145, enacted 8 November 1986, required a spouse’s written concurrence for a retiring member’s election that provides less than the maximum spouse coverage.

CONCLUSIONS:

1.  There is evidence of Government error in this case.

2.  Prior to his retirement, the applicant completed a DD Form 2656 and elected not to participate in the SBP.  As required by law, his spouse concurred in his decision.  At that time the Government erred by not having the applicant sign the DD Form 2656.  The DD Form 2656 was forwarded to DFAS-CL.  Because the form was incomplete, coverage defaulted to spouse coverage.  The applicant was only then told by his servicing personnel office that he should have signed the form.

3.  Even though the applicant's spouse enjoyed the protection of the SBP during the time after his retirement until the divorce, that protection was given against the expressed wishes of the applicant and his spouse.  He should not be penalized by an error of the Government.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant signed his DD Form 2656 on 5 July 1995, and it was properly witnessed on 5 July 1995, declining to participate in the SBP.

2.  That the applicant be refunded any and all SBP premiums due him as a result of the above correction.

BOARD VOTE:  

__jl____  __lds___     __rd____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___JoAnn Langston__
		        CHAIRPERSON

INDEX

CASE ID	AR2003087970	
SUFFIX		
RECON		
DATE BOARDED	20031120	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY	Mr. Schneider	
ISSUES         1.	137.00	
2.		
3.		
4.		
5.		
6.