IN THE CASE OF: BOARD DATE: 04 DECEMBER 2008 DOCKET NUMBER: AR20080013155 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, the refund of all of his Survivor Benefit Plan (SBP) premiums paid since the date of his retirement. 2. The applicant states that he desires to have all of his SBP premiums refunded to him because he never elected to participate in the SBP. 3. The applicant provides a letter from the Defense Finance and Accounting Service (DFAS) informing him that he was being refunded a portion of his SBP premiums based on his final divorce decree and copies of his divorce decrees. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army in El Paso, Texas on 14 March 1984 and remained on active duty as a track vehicle repairer, through a series of continuous reenlistments. He was married on 18 December 1987 and was promoted to the pay grade of E-6 on 1 July 1998. 2. The applicant completed his last overseas tour in Korea on 17 August 2000 and was transferred to Aberdeen Proving Ground, Maryland for his last duty assignment. 3. On 31 March 2004, he was honorably released from active duty and was transferred to the Retired List effective 1 April 2004. He had served 20 years and 17 days of total active service. 4. The divorce decree provided by the applicant shows that the applicant and his wife separated on 15 April 2003 and a final divorce was granted on 10 January 2007. He had two children from his marriage, one of which was under the age of 18 at the time of his divorce. The divorce decree specified that his spouse would receive 50% of the applicant's disposable military retired pay, that she would retain all applicable retired military benefits available to her under the Uniformed Service Former Spouses' Protection Act, including remaining a beneficiary under the SBP. 5. On 3 July 2008, the DFAS dispatched a letter to the applicant informing him that he would be refunded SBP premiums effective from the date of his divorce (January 2007) in the amount of $1,582.58. His current SBP premium deductions were changed to $0.00. 6. In the processing of this case a staff member of the Board contacted officials at the DFAS to determine what the applicant's original SBP election indicated. Officials at the DFAS indicated that on 24 December 2003, the applicant submitted a DA Form 2656 to the DFAS and elected not to participate in the SBP. However, that form did not contain his spouse's signature and as such was deemed an invalid election. Accordingly, he was automatically enrolled in the SBP under the full spouse coverage option. 7. Title 10 United States Code, Section 1448 provides, in pertinent part, that effective 1 March 1986, a married member is enrolled with spouse coverage on full retired pay at the time of retirement unless that spouse has concurred in writing to another election requested by the member pursuant to Department of Defense Financial Management Regulation, Volume 7B, Chapter 43. When the spouse’s concurrence is required, the signature indicating concurrence must be corroborated by one or more witnesses. This chapter also states, in pertinent part, that the Secretary of the Military Department concerned (or designee) may correct any election or any change or revocation of an election when the Secretary considers it necessary to correct an administrative error. 8. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP 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. An election, once made, was irrevocable except in certain circumstances. At that time, Soldiers who elected to decline participation in the SBP could do so without spousal concurrence. 9. 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. While the applicant clearly did elect not to participate in the SBP, his election was deemed invalid because he was still legally married and could not legally divest his wife's interest in protecting his retirement benefits without her approval. Accordingly, he was automatically enrolled in the SBP under the spouse only full coverage option. 2. However, once the applicant was legally divorced and provided a copy of the divorce decree to the DFAS, the DFAS initiated action to refund all premiums paid from the time of divorce and to suspend his SBP premium deductions. 3. 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 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. _______ _XXX _______ ___ 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) AR20080013155 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080013155 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1