BOARD DATE:	  29 May 2012

		DOCKET NUMBER:  AR20110019508 


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 correction of her records to change her Survivor Benefit Plan (SBP) coverage from "spouse only" to "children only" coverage.

2.  The applicant states she was not properly counseled at retirement.  She contends she was informed that she would receive the declination paperwork in the mail for her spouse to sign, but it never came.  Further, the Defense Finance and Accounting Service (DFAS) never received her SBP election certificate and automatically enrolled her in "spouse" coverage effective 1 September 2011.  She further contends her spouse is in complete agreement with her election to have only their children covered under SBP as he has his own retirement income from the U.S. Marine Corps.

3.  The applicant provides:

* Retiree Account Statement effective 9 September 2011
* DD Form 2656 (Data for Payment of Retired Personnel), dated 4 May 2011
* notarized spousal consent, dated 1 May 2012

CONSIDERATION OF EVIDENCE

1.  The applicant was appointed as a second lieutenant in the U.S. Army Reserve and concurrently ordered to active duty on 15 May 1994.  She continuously served on active duty until she retired on 31 August 2011.

2.  Her DD Form 2656, dated 4 May 2011, shows her date of marriage as 2 May 1998 and lists two children.

3.  She submits the following documents in support of her application:

	a.  a DD Form 2656, dated 4 May 2011, which shows she elected "children only" coverage, full amount, and indicated she had a spouse; however, this document does not show spousal concurrence and is not notarized;

	b.  a Retiree Account Summary which shows deductions for "spouse only" coverage; and

	c.  a notarized letter, dated 1 May 2012, signed by the applicant and her spouse in which the spouse confirms it was his original intent to decline SBP coverage and he still elects to decline the coverage.

4.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  An election, once made, is irrevocable.

5.  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 less than the maximum spouse coverage.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests change of her SBP coverage from "spouse only" to "children only" coverage.

2.  The evidence shows she completed and signed a DD Form 2656 on 4 May 2011 in which she elected to participate in the SBP for "children only" coverage, full amount, and indicates she has a spouse.  However, this form does not show spousal concurrence.

3.  Public Law 99-145 requires spousal concurrence whenever the member's election provides less than the maximum spouse coverage; therefore, her DD Form 2656 would have been considered invalid by DFAS and her election would automatically default to "spouse only" coverage.  Her retiree pay records confirm such an election.

4.  It appears the Retirement Services Office erred by failing to follow processing instructions.   She clearly made the SBP election of "children only" and indicated she had a spouse; therefore, this form should by no means have been processed without spousal concurrence.  As a matter of equity, it would be appropriate to correct her records to show she elected "children only" coverage on 4 May 2011 and to reimburse any difference in premiums caused by this error.

5.  In view of the foregoing, her request should be granted.

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 is 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 4 May 2011 electing to participate in the SBP for "children only" coverage, full amount, and that her spouse concurred with her decision on the same date;

	b.  showing DFAS timely received and processed the DD Form 2656 with her spouse's notarized concurrence; and

	c.  reimbursing the difference in any premiums already paid by the applicant as a result of this correction.



      __________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)                                         AR20110019508



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ABCMR Record of Proceedings (cont)                                         AR20110019508



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