IN THE CASE OF:	  

		BOARD DATE:	  27 August 2009

		DOCKET NUMBER:  AR20090005211 


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, in effect, that his records be corrected to show that he elected the Survivor Benefit Plan (SBP) in a timely manner.

2.  The applicant states that he did not receive a DD Form 2656 (Data for Payment of Retired Personnel) prior to his retirement date.  Now the Defense Finance and Accounting Service (DFAS) will not accept his "invalid" DD Form 2656 dated 24 March 2009.

3.  The applicant provides the orders placing him on the Temporary Disability Retired List (TDRL) effective 12 January 2008; a memorandum to him dated 7 December 2007 which informs him that prior to activation of his retired pay account, he must complete a DD Form 2656 and send it to DFAS; and a DD Form 2656 dated 24 March 2009.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he enlisted in the Army National Guard (ARNG) on 19 November 1999 with 1 year, 6 months, and 16 days of prior Reserve Component service and 2 years, 3 months, and 22 days of prior active service.





2.  The applicant served continuously in the ARNG and was promoted to pay grade E-7.

3.  On 12 January 2008 the applicant was placed on the TDRL.

4.  In the processing of this case, the Board's staff contacted the DFAS which provided the Board's staff a DD Form 2656 dated 28 September 2008 in which the applicant elected not to participate in the SBP.  His wife signed this form on the same date concurring with the applicant's election.  This form is witnessed and notarized.

5.  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.  Changes in SBP options are not authorized except in specific instances, or authorized by law.

DISCUSSION AND CONCLUSIONS:

1.  Contrary to the applicant's contention, he had submitted a DD Form 2656 dated 28 September 2008 which was accepted by DFAS.  This was dated and received by the DFAS well prior to the DD Form 2656 submitted by the applicant which is dated 24 March 2009.

2.  However, the applicant declined SBP in the DD Form 2656 dated 28 September 2008 and his wife concurred with the declination.

3.  Since a legal SBP election was made declining SBP, there is no basis for changing the applicant's records to show he elected SBP coverage.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ____X__  ___X____  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.




      _______ _   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)                                         AR20090005211





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ABCMR Record of Proceedings (cont)                                         AR20090005211



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