IN THE CASE OF: BOARD DATE: 19 January 2016 DOCKET NUMBER: AR20150004924 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 she be disenrolled from the Reserve Component (RC) Survivor Benefit Program (SBP)/SBP and that any costs of the RCSBP/SBP that she has been charged with be returned to her. 2. The applicant states when she became eligible to receive a reserve retirement in 2005 she declined making an election for SBP until age 60. The action was notarized according to the instructions she and her spouse received at the time. Now she is being told her husband's concurrence with that decision is not valid because he signed and dated the form before she made her selection of Option A. It was notarized by an employee of the Iowa Army National Guard (IAARNG) Judge Advocate General's (JAG) office. When she applied for her Reserve retirement in 2013 it was determined that since she declined the coverage in 2005, and had that action notarized, there wasn't any need to have her declination notarized again or have her husband sign that he concurred with the election. Now she's being told by the Defense Finance and Accounting Service (DFAS) that much of this action was in error and she's been enrolled in SBP for her husband and being charged accordingly which is not what she intended or planned for. 3. The applicant provides: * DD Form 2656-5 (RCSBP Election Certificate), dated 11 September 2005 * DD Form 2656 (Data for Payment of Retired Personnel), dated 21 Jun 2013 * DFAS pay statement * Declaration and Intent for SBP for the applicant and her spouse, dated 19 November 2015 CONSIDERATION OF EVIDENCE: 1. On 10 May 1985, she was commissioned a second lieutenant in the U.S. Army Reserve (USAR). The applicant and her husband were married on 12 July 1998. 2. On 1 March 2001, she entered the IAARNG and she was assigned to Joint Forces Headquarters - Iowa (JFHQ-IA), Johnston, IA. 3. In a memorandum, dated 23 June 2005, JFHQ-IA notified her she had completed the required years of service for eligibility for retired pay upon application at age 60 (her 20-year letter). Her date of birth is 11 December 1954. 4. On 11 September 2005, the applicant completed a DD Form 2656-5 and elected Option A to decline to make an election until age 60. She signed the form on 11 September 2005. Her husband concurred with her RCSBP election. His signature was notarized; however, it was dated 10 August 2005. There is no evidence in the record that she was notified her election to defer was not accepted and that the election was defaulted to Option C, immediate annuity, based on full amount of retired pay. 5. On 21 June 2013, the applicant completed a DD Form 2656 to begin receiving retired pay on 11 December 2014. a. On the DD Form 2656 in her official military personnel file (OMPF) she had placed an "x" in block 26g "I ELECT NOT TO PARTICIPATE IN SBP." She also had placed an "x" in block 27a "I ELECT COVERAGE BASED ON FULL GROSS PAY." She signed the form on 21 June 2013. Her husband concurred with the SBP election made by his spouse. His signature is notarized; however, it is dated 2 June 2015. b. On the DD Form 2656 that she provided she had placed an "x" in block 26g "I ELECT NOT TO PARTICIPATE IN SBP." She signed the form on 21 June 2013. Her husband did not sign this form. 6. On 30 June 2013, she was separated from the IAARNG and transferred to the Retired Reserve. She was placed on the Roll of Retired Officers effective 1 July 2013. 7. On 11 December 2014, she was retired and placed on the Army of the United States Retired List. 8. The applicant provided a Declaration and Intent for SBP. a. It was the desire and intent of both the applicant and her husband, a retired Army colonel, to defer to age 60 for her to elect participation in the SBP. At the time of this deferment, both the applicant and her husband had the knowledge, desire, and intent to make this deferment. At the time of deferment, the applicant's husband was fully aware of the implications of deferring the election of SBP and concurred with this decision. b. Upon application for military retiree benefits for the applicant at age 60 both the applicant and her husband, a retired Army colonel, had the knowledge, desire, and intent to not participate in SBP and specifically declined this participation. At the time of the election to not participate in SBP, the applicant's husband was fully aware of the implications of not participating in SBP and concurred with the election not to participate. c. The above statements were signed by the applicant and her husband and was notarized on 19 November 2015. 9. She provided a DFAS pay statement showing that RCSBP and SBP premiums are being deducted from her retired pay. 10. Department of Defense Instruction (DODI) 1332.42, effective 24 August 2004, provided the responsibilities and procedures for administering the Survivor Annuity Program, which is comprised of the Survivor Benefit Plan (SBP) and the Reserve Component Survivor Benefit Plan (RC-SBP). a. Paragraph E3.2.2 stated a Reserve Component member who had a spouse or dependent child upon being notified of eligibility to receive retired pay was considered a participant having maximum RC-SBP coverage (Option C), unless the member, with spousal concurrence if married, elected less-than-maximum spouse coverage for an immediate annuity (Option B), child-only coverage, deferred coverage (Option A), or not to participate in the Program. An election for less-than maximum RC-SBP coverage must have been received by the member’s Service within the 90-day period immediately following such notification of eligibility (20-year letter). An election under this paragraph was irrevocable, unless otherwise provided by law, if not revoked before the end of the 90-day period. b. Paragraph E3.5.1 stated written spousal concurrence was required when the member elected to decline coverage or provide the spouse with less than the maximum SBP coverage available, to include electing child-only coverage, and when a member eligible for RC-SBP declines coverage or elects coverage that provides less than a maximum immediate spouse annuity. 11. An Office of the Under Secretary of Defense Memorandum, dated 19 December 2007, provided an interim change to Paragraph E3.5.1 of DODI 1332.42 that required that spousal consent be notarized in the case of a member who declined or elected less than full RC-SBP/SBP coverage upon initial eligibility to elect such coverage. The effective date of this change was for all SBP and RC-SBP elections made on or after 1 May 2008. 12. DODI 1332.42, effective 23 June 2009, states in Paragraph 5a of enclosure (3) states written spousal concurrence is required when the member elects to decline coverage or provide the spouse with less than the maximum SBP coverage available. The signature of the spouse must be notarized. The requirement to have the spouse’s signature notarized is not to suggest that the spouse has received additional counseling regarding the option being selected. It simply provides certification that the spouse signed the form. DISCUSSION AND CONCLUSIONS: 1. Her 20-year letter was dated 23 June 2005. Her DD Form 2656-5 was well within the required 90-day period for submission. Her spouse concurred with her election of Option A to make an election until age 60. However, his signature was dated 1 month before the date of her election. This error caused her election to default to maximum RC-SBP coverage (Option C). He would have had to concur with her election on or after the date of her election. 2. The applicant stated this form was completed at the IAARNG JAG office. It is unknown how an employee in a legal office would not have been able to detect a discrepancy in dates that could have been corrected at that time. There was no requirement for her spouse's signature to be notarized until 1 May 2008. 3. There is no evidence that her DD Form 2656-5 was not acceptable or that her election was defaulted to Option C. 4. Neither of the DD Forms 2656 in evidence are correct. a. The DD Form 2656 in her OMPF contains an "x" in both blocks 26g and 27a, thereby making both entries invalid. The date of her spouse's signature is 2 years after the date she signed the form. His signature is notarized. b. The DD Form 2656 provided by the applicant does not contain the notarized signature of her husband. 5. The Declaration and Intent for SBP provided by the applicant and signed and notarized by both the applicant and her husband on 19 November 2015 clearly states that their intent was to defer participation in RCSBP until the applicant turned age 60 and to elect not to participate in SBP upon the applicant's application for retired pay at age 60. Both parties had the knowledge, desire, and the intent to make these decisions and they were both aware of the implication of both deferring the election of RC-SBP and the election of not participating in SBP. 6. It appears there was little or no assistance provided to the applicant in the proper completion of the DD Form 2656-5 or the DD Form 2656. A Soldier only completes these forms once in an Army career. The applicant should not be penalized for a lack of knowledge or the lack of proper assistance provided by administrative personnel. 7. It would be equitable to correct the applicant's DD Form 2656-5 to show in block 12 (Options) Option A, that she made an election to decline RCSBP coverage until age 60, and that she signed the form and her husband concurred on 10 August 2005. 8. In addition, it would be equitable to correct the applicant's DD Form 2656 to show the applicant placed an "x" in block 26g, that her husband concurred with her election, and that his notarized signature on the form is dated 21 June 2013. 9. Any RCSBP/SBP premiums previously withheld from the applicant's retired pay should be returned to her. 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. Correcting her DD Form 2656-5 to show she signed the form on 10 August 2005; b. Correcting her DD Form 2656 by deleting the "x" in block 27a and show the applicant placed an "x" in block 26g, that her husband concurred with her election, and that his notarized signature on the form is dated 21 June 2013; and c. Returning any RCSBP/SBP premiums previously withheld from her retired pay. _______ _ 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) AR20150004924 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004924 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1