| Mr. Loren G. Harrell | Director | |
| Mrs. Nancy Amos | Analyst |
| Mr. Samuel A. Crumpler | Chairperson | |
| Mr. James E. Vick | Member | |
| Mr. Luther L. Santiful | Member |
APPLICANT REQUESTS: In effect, a refund of the Survivor Benefit Plan (SBP) premiums mistakenly withheld from his pay during the time he was divorced, September 1977 - December 1986.
APPLICANT STATES: He was never notified the law was changed in October 1976 so he could not request the premium withholdings be stopped.
EVIDENCE OF RECORD: The applicant's military records show:
He was inducted into the Army on 24 March 1953. He had continuous service and retired on 31 March 1973, in pay grade E-7, after completing 20 years of active federal service.
At the time of his retirement he had elected SBP coverage for his spouse.
He and his spouse divorced on 16 September 1977.
Public Law 91-425, 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 spouse and dependent children. The election made by the soldier was irrevocable.
Public Law 94-496, enacted 14 October 1976, allowed no costs to be paid when there was no beneficiary.
Title 32, U. S. Code, section 3702, the Barring Statute, provides that a claim against the government must be received by the government within 6 years after the claim accrues.
In the processing of this case, an advisory opinion was obtained from Retired Pay Operations, Defense Finance and Accounting Service - Cleveland. That office noted that there is no record of any attempt made by the applicant to notify his retired pay center of his divorce. It also notes that there exists no authority to waive the provisions of the Barring Statute.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:
1. The applicant made a valid SBP election when he retired in 1973. At the time, his election was irrevocable.
2. The law changed in October 1976 to allow no costs to be paid when there was no beneficiary. When the applicant divorced in September 1977, he effectively had no beneficiary. However, there is no evidence he made any attempt to notify his retired pay center that he was now divorced.
3. The applicant’s contention that he knew nothing of the change is not a valid argument. As a retired senior non-commissioned officer, he had a responsibility to himself to learn of any possible law changes that would affect his pay when his marital status changed. He submits no evidence that he attempted to contact his retired pay center, a retirement services officer, or a personnel service center at any time to learn of any such changes. He submits no evidence to show that he submitted his divorce papers to the local Army and Air Force Exchange Service, his employer at the time, to forward the papers on to finance.
4. In any event, the Barring Statute would prevent the government from paying this claim as he has submitted it beyond the 6-year statute of limitations.
5. In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
________ ________ ________ GRANT
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
Loren G. Harrell
Director
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