RECORD OF PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           13 January 2004                   
	DOCKET NUMBER:   AR2003091310

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

| Mr. Carl W. S. Chun | | Director
| Mr. Joseph A. Adriance | | Analyst

  The following members, a quorum, were present:

| Ms. Lana E. McGlynn | | Chairperson
| Mr. Roger W. Able | | Member
| Mr. Patrick H. McGann | | Member

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, refund of Survivor Benefit Plan (SBP) payments in the amount of $11,700.  

2.  The applicant states, in effect, that no one but he is entitled to his SBP benefit and he would like a refund of the amount withheld from his monthly retired pay because his ex-wife committed bigamy.  

3.  In support of his application, the applicant provides a copy of his separation document (DD Form 214), a Department of Veterans Affairs (VA) letter, dated 1 November 2002, which certifies he is entitled to compensation for a service connected disability, and a copy of Defense Finance and Accounting Service (DFAS) letter response to a Congressional Inquiry, dated 12 May 2003.  The applicant failed to provide any documents related to his divorce from his ex-wife or any related to requests regarding his SBP benefit.  

CONSIDERATION OF EVIDENCE: 

1.  On 31 July 1986, the applicant was released from active duty for the purpose of retirement.  At the time, he had completed a total of 20 years and 26 days of active military service and held the rank and pay grade of sergeant first class/E-7 (SFC/E-7).  

2.  The applicant’s record includes a Data for Payment of Retired Army Personnel (DA Form 4240) that was prepared on 30 July 1986, during his retirement processing.  Part III (SBP-Election) confirms the applicant elected full spouse SBP coverage at the time.  

3.  The applicant failed to provide any court documents regarding his divorce.  However, the DFAS Congressional Inquiry response he provided confirms that he was divorced on 8 May 2001, and his former spouse remained a legal SBP beneficiary and received continued financial protection through that date.  

4.  Title 10 of the United States Code, section 1452 provides the legal authority for the reduction in retired pay for spouse and former spouse annuities.  The law states, in pertinent part, that as a general rule, a person is not entitled to refund of any amount deducted from retired pay under this section.  

5.  Regardless of the SBP option elected, you must promptly notify the finance center if you divorce, if your spouse dies or if you remarry.  This ensures premiums are properly suspended or resumed.  SBP premiums stop when there is no longer an eligible beneficiary in a premium category, such as a spouse is lost through death or divorce.  If a spouse is lost through death or divorce, spouse premiums are suspended.   

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record in this case confirms that the applicant elected full spouse SBP coverage at the time of his retirement, and that premium payments for this elected coverage were properly deducted from his retired pay while there remained an eligible beneficiary as is required by law.  

2.  Although the independent evidence provided by the applicant is limited, it appears that he was not legally divorced until 8 May 2001.  Prior to that date, his former spouse remained an eligible spouse SBP beneficiary and continued to receive the benefit of SBP coverage.  

3.  As the applicant was advised by DFAS officials, the law stipulates that there is no entitlement to refund of any amounts deducted from retired pay for SBP premiums.  However, premium payments are stopped once there is no eligible beneficiary.  In this case, it appears the applicant’s premium payments were stopped on 8 May 2001, when he and his former spouse divorced.

4.  Although the reasons for divorce as represented by the applicant were unfortunate, regrettably the facts of the case do not provide a sufficient evidentiary basis to support granting the requested relief.  

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement. 

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

PM___  __LEM__  __RA  __  __  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.

		Lana E. McGlynn
		CHAIRPERSON

INDEX

CASE ID | AR2003091310
SUFFIX |
RECON |
DATE BOARDED | 2003/12/DD
TYPE OF DISCHARGE | HD
DATE OF DISCHARGE | 1986/07/31
DISCHARGE AUTHORITY | AR 635-200
DISCHARGE REASON | Retirement
BOARD DECISION | DENY
REVIEW AUTHORITY |
ISSUES         1.  346 | 137.0000
2. |
3. |
4. |
5. |
6. |