IN THE CASE OF:	  

		BOARD DATE:	  15 July 2010

		DOCKET NUMBER:  AR20090019420


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 termination of her participation in the Survivor Benefit Plan (SBP).

2.  The applicant states, in effect, she and her spouse never elected to participate in the SBP, but the Defense Finance and Accounting Service (DFAS) is withholding premiums.

3.  The applicant provides a copy of her:

* DD Form 2656 (Data for Payment of Retired Personnel), dated 20 September 2007
* DD Form 2656, dated 30 October 2009

CONSIDERATION OF EVIDENCE:

1.  The applicant is a U.S. Army Reserve (USAR) lieutenant colonel.  She was born on 20 September 1949.  On 6 June 1994, she received her Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

2.  On 3 September 1994, the applicant completed a DD Form 1883 (Survivor Benefit Plan Election Certificate) selecting option A to defer election until eligible for retired pay.

3.  Orders A-041-1, Headquarters, 143rd Transportation Command, Orlando, FL, dated 10 February 1999, reassigned the applicant from her troop program unit to the U.S. Army Reserve Control Group (Reinforcement), effective 30 January 1999.

4.  The applicant became eligible for retired pay on 20 September 2009.  On 20 September 2007, the applicant submitted a DD Form 2656 declining to participate in the SBP.  Her spouse concurred and signed in the appropriate place on the form on 19 September 2007.

5.  A review of DFAS records reveals SBP premiums being withheld from the applicant's retired pay.

6.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  The election must be made prior to the effective date of retirement or else coverage automatically defaults to spouse coverage, if applicable.

7.  Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse's written concurrence for a retiring member's election that provides anything less than the maximum spouse coverage.

DISCUSSION AND CONCLUSIONS:

1.  The applicant wants her SBP terminated.

2.  It is clear the applicant and her spouse did not want to participate in and never elected to participate in the SBP.  When she received her 20-year letter, the applicant chose to defer election of SBP.  When she completed her request for retired pay in advance of her eligibility, she declined SBP and her husband concurred.  Unfortunately, her husband dated his concurrence one day before her election.  This voided the document and defaulted SBP to full coverage.

3.  It would be in the interest of justice and equity to grant the applicant's request.

BOARD VOTE:

___X____  ____X___  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

The Board determined 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 the applicant accurately completed the DD Form 2656 on 20 September 2007 electing not to participate in the SBP, that her spouse concurred with her decision on the same date, and that DFAS timely received and processed the DD Form 2656 with the spouse's concurrence with the applicant's SBP election; and

	b.  reimbursing any premiums already paid by 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)                                         AR20090019420



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ABCMR Record of Proceedings (cont)                                         AR20090019420



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