RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 August 2007 DOCKET NUMBER: AR20070001685 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. Ms. Catherine C. Mitrano Director Mr. Mohammed R. Elhaj Analyst The following members, a quorum, were present: Mr. Jeffrey C. Redmann Chairperson Ms. Rea M. Nuppenau Member Mr. Dennis J. Phillips Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, that the records be corrected to show he enrolled in Survivor Benefit Plan (SBP) for children only coverage. 2. The applicant states that upon retirement from active duty, he elected children only SBP. The applicant further states that he is currently paying full SBP for spouse coverage. 3. The applicant provides a self-authored spouse statement titled spousal survival benefit consent and stating that his spouse elects not to participate in the SBP program in its entirety. CONSIDERATION OF EVIDENCE: 1. The applicant's military records show he entered active duty as a commissioned officer on 25 July 1985 and retired on 28 February 2006 in the grade of lieutenant colonel/pay grade O-5. 2. On 20 December 2005, the applicant received his SBP counseling and completed the DD Form 2656 (Data for Payment of Retired Personnel). This form shows that the applicant placed his "X" in item 26c (Beneficiary Categories). This box is identified in the instructions as "I do elect coverage for child(ren) only)." 3. Although the DD Form 2656 identifies the applicant's spouse by name and date of birth, it does not show it was authenticated by the spouse as indicated in Section XI (SBP Spouse Concurrence). This section shows that "SBP Spouse Concurrence is required when member is married and elects child(ren) only coverage, does not elect full spouse coverage, or declines coverage." 4. Public Law 92-245, enacted 21 September 1972, established the SBP. The SBP provided that military on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. 5. 10 U.S Code, section 1448, requires that an otherwise eligible spouse concur if the member declines to elect SBP coverage, elects less than the maximum coverage, or elects child only coverage. Spouse's concurrence must be obtained and dated on or after the date of the member's election, but before the retirement/transfer date. If concurrence is not obtained when required, maximum coverage will be established for the spouse and children if appropriate. 6. Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation. Retirees have a one-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. 7. 10 U.S Code, Section 1448a allows a participant in the SBP to elect to discontinue during the 25th through the 36th month after commencement of payment of retired pay. There is no refund of costs already paid for SBP coverage nor will the SBP benefits be paid upon death of a member who disenrolls. Additionally, when a member discontinues SBP, that member can not reenter the plan. DISCUSSION AND CONCLUSIONS: 1. Considering the evidence and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded that the spouse's concurrence on the DD Form 2656 was not obtained on or after the date of the applicant's election. Therefore, the coverage defaulted to maximum coverage for spouse (and children, if appropriate). 2. Since the applicant was a senior field grade officer, there seems to be no indication that he and his spouse were not adequately counseled concerning SBP. The DD Form 2656 clearly identified the options available and the requirement to obtain his spouse's concurrence. He had a responsibility to himself and his spouse to make an informed SBP decision. 3. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant did not submit evidence which would satisfy this requirement. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __jcr___ __rmn___ __djp___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. Jeffrey C. Redmann ______________________ CHAIRPERSON INDEX CASE ID AR20070001685 SUFFIX RECON DATE BOARDED 20070809 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION (DENY) REVIEW AUTHORITY ISSUES 1. 137.0400 2. 3. 4. 5. 6.