IN THE CASE OF: BOARD DATE: 21 January 2009 DOCKET NUMBER: AR20080011314 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 that her records be corrected to show that she does not wish to participate in the Survivor Benefit Plan (SBP) program. 2. The applicant states she had been assured by military officials that she was not enrolled in the SBP. However, upon receipt of her retirement pay she found that monies were being taken out for SBP. She wants the withholding of the money to stop and the money already withheld to be reimbursed. 3. The applicant provides a November 2008 notarized statement confirming that she and her husband declined participation in the SBP, a July 2006 Retired Pay Department document, a July 2006 Retiree Account Statement, and a March 2008 statement from the applicant and her spouse. CONSIDERATION OF EVIDENCE: 1. The applicant, a career Soldier, served on active duty from 12 June 1986 through 30 June 2006, attaining the rank and pay grade of first sergeant (1SG)/ E-8. 2. At the time the applicant applied for retirement she was stationed in Lansing, Michigan and her spouse was in Fort Knox, Kentucky. 3. The applicant's iPERMS (integrated Personnel Electronic Records Management System) file does not contain a copy of her DD Form 2656 (Data for Payment of Retired Personnel). 4. A Defense Finance and Accounting Service (DFAS) letter to the applicant, dated 7 July 2006, sets out her basic retirement information and advises her of her monthly retirement pay level. It states that she elected not to participate in the SBP. 5. Her Retiree Account Statement, dated 7 July 2006, lists her only withholding as Federal Income Tax. 6. A DD Form 2656, dated 20 March 2006, provided by DFAS, provides the following information: a. at block 26g, that the applicant elected not to participate in the SBP; b. at block 29, that there was a "spouse letter" attached; c. at block 31, states "See spousal concurrence statement"; and d. has the statement "missing sps letter. invalid due to missing (sic) signature" in what appears to be a computer generated insert block superimposed on the form. 7. The applicant and her spouse provided a jointly signed statement, dated 7 March 2008, that outlines the applicant's contentions and requests that the SBP withholding be stopped. 8. An 18 November 2008 notarized statement was provided confirming that the applicant and her spouse declined to participate in the SBP program. 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 SBP election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married). 10. Public Law 95-145, enacted 8 November 1985, required the spouse's written concurrence for a retiring member's election that provides less than maximum spouse coverage. DISCUSSION AND CONCLUSIONS: 1. The evidence clearly shows that both the applicant and her spouse attempted to properly complete and sign the DD Form 2656 prior to the date of the applicant's retirement. This form was originally accepted as noted by the 7 July 2006 DFAS letter. 2. Because the applicant's spouse was not physically located near the applicant at the time of her retirement, the DD Form 2656 shows that he provided a separate concurrence letter. However, the concurrence letter does not appear to have been properly attached to the DD Form 2656 forwarded to the DFAS. As a result, the DFAS apparently applied the letter of the law and started withholding SBP payments as if no election was made. 3. The applicant and her spouse have submitted jointly signed and notarized, statements stating that they intended to decline participation in the SBP. 4. The available documentation shows that the applicant and her spouse had properly submitted a declination of the SBP. Through no fault of the applicant or her spouse the necessary supporting documentation was lost. 5. As a matter of equity the records should be corrected to show that the applicant's spouse concurred with the declination of SBP, that his signature was properly witnessed on 21 March 2006, and that the applicant be reimbursed all SBP premiums previously withheld. 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 that the applicant's spouse concurred with the declination of SBP and that his signature was properly witnessed on 21 March 2006; and b. directing DFAS to stop withholding SBP premiums and refund all SBP premiums already withheld to the applicant. _________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) AR20080011314 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080011314 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1