| Mr. Carl W. S. Chun | Director | |
| Mrs. Nancy Amos | Analyst |
| Mr. Raymond J. Wagner | Chairperson | |
| Mr. Kenneth W. Lapin | Member | |
| Ms. Paula Mokulis | Member |
2. The applicant requests that his records be corrected to show he declined to participate in the Survivor Benefit Plan (SBP), that his spouse concurred in his decision, and that all SBP premiums collected be refunded to him.
3. The applicant states that he declined the SBP when he retired. His wife concurred but she was not at Fort Bragg, NC at the time and apparently she did not receive a notice to sign giving her concurrence. No notices or collections were made between 1994 and 2001. The Defense Finance and Accounting Service (DFAS) notified him in February 2001 that he owed over $8,000 in back premiums. He provides an affidavit from his now-former spouse wherein she states that they discussed the SBP when he retired. She does not recall whether or not she signed a concurrence statement; however, she did not desire the SBP then and does not desire it now.
4. The applicant’s military records show that after having had prior service, he reenlisted in the Regular Army on 20 April 1973. He retired on 1 April 1994. At that time he declined to participate in the SBP. The Data for Payment of Retired Army Personnel, DA Form 4240, does not contain the applicant’s spouse’s signature, does not indicate that a counseling letter was sent to his spouse, nor is the section requiring the spouse’s signature signed by the Retirement Services Office counselor.
5. The applicant and his spouse divorced on 1 February 2000. The court awarded his spouse $825.00 of his disposable retired pay. The only mention of the SBP was that the Army was ordered to give his spouse a legible copy of the applicant’s SBP election or the waiver of the same.
6. By letter dated14 February 2001, DFAS informed the applicant that the SBP portion of his retired pay account was being adjusted from declined to automatic spouse coverage based on the fact his spouse did not concur in his declination.
7. Public Law 92-425, 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 dependents. Retiring members and spouses were to be informed of the SBP options and effects.
8. Public Law 99-145, enacted 8 November 1986, required a spouse’s written concurrence for a retiring member’s election that provides less than the maximum spouse coverage. If the spouse’s written concurrence was not obtained, SBP coverage defaulted to spouse coverage.
CONCLUSIONS:
1. The Board concludes that a Government error occurred in this case.
2. The applicant declined to participate in the SBP when he retired. His spouse was required to be counseled concerning his decision. Since she was not available in person for counseling, a letter was required to be sent to her. The DA Form 4240 indicates that such a letter was never sent to her. DFAS did not notice this error until seven years later, when they informed the applicant that he had made an invalid SBP election by not obtaining his spouse’s written concurrence with his declination and imposing a $8,000 debt upon him for back premiums. There is reasonable doubt as to whether the applicant’s spouse would have been provided the annuity had the applicant died prior to this time.
3. The applicant and his spouse divorced in February 2000. His now-former spouse has provided an affidavit declaring that they had discussed the SBP at the time of his retirement and mutually agreed to decline it. The SBP is not mentioned in the divorce decree and she states that she did not desire the SBP as part of the divorce settlement.
4. In view of the foregoing, the applicant’s records should be corrected as recommended below.
RECOMMENDATION:
1. That all of the Department of the Army records related to this case be corrected by showing that the applicant’s now-former spouse signed the DA Form 4240 on 1 January 1994 concurring in the applicant’s declination of the SBP.
2. That the debt held against the applicant for back SBP premiums be cancelled and any portion of that debt already collected be refunded to him.
BOARD VOTE:
__rjw___ __kwl___ __pm____ GRANT AS STATED IN RECOMMENDATION
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
Raymond J. Wagner
______________________
CHAIRPERSON
| CASE ID | AR2001060303 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20010920 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | (GRANT) |
| REVIEW AUTHORITY | |
| ISSUES 1. | 137.00 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
ARMY | BCMR | CY2010 | 20100028852
The applicant requests, in effect, correction of his record to show he elected to discontinue participation in the Survivor Benefit Plan (SBP) and dismissal of the $10,502.66 debt established by the Defense Finance and Accounting Service (DFAS) for SBP premiums he did not pay when he remarried after he retired from military service. The evidence of record does not support the applicant's request for correction of his record to show he elected to discontinue participation in the SBP or...
ARMY | BCMR | CY2013 | 20130013763
The applicant requests, in effect, correction of his records to show he elected to participate in the Survivor Benefit Plan (SBP) for spouse coverage at the reduced amount and reimbursement of premiums collected due to being charged premiums for spouse coverage at the full amount. However, he provides an unsigned/archived DD Form 2656 that shows: * he and Ella were married on 24 May 2001 * he elected coverage for spouse * his election was based on a reduced amount of $675.00 6. As a...
ARMY | BCMR | CY2009 | 20090002143
The applicant married the FSM in "1995," but he did not inform DFAS within a year of the marriage, so the applicant was not eligible. DFAS issued the applicant two payments which were later collected because she was not entitled to an SBP annuity because the FSM was not married at the time of his retirement and had not elected coverage for her within one year of their marriage. As a result, the Board recommends that all Department of the Army records of the FSM be corrected by showing that...
ARMY | BCMR | CY2006 | 20060008071
On 15 January 1996, the applicant submitted a request to DFAS, based on a proceeding of divorce and ratified by a court order signed and dated 17 October 1995, to be deemed the former spouse of the FSM for the purpose of survivor benefit coverage under the SBP. d. upon information and belief the SBP benefits have not been continued and the applicant had been unable to obtain military records to confirm the same; and e. the applicant requested the Court issue an order requiring release of...
ARMY | BCMR | CY2008 | 20080000502
Counsel states the following new evidence, unavailable and not in the possession of the applicant at the time of application, is submitted to the Board and proves undeniably that the applicant is the surviving spouse of the FSM; that she was married to the FSM at the time of his death; that no divorce between the FSM and applicant had ever been granted; and that the United States Government recognizes that the applicant is the FSM's widow and was entitled to all appropriate benefits. At the...
ARMY | BCMR | CY2005 | 20050002897C070206
The applicant states that Section 24 of the DA Form 4240 (Data for Payment of Retired Army Personnel) contains a signature which has been forged. She requests that this signature be removed and replaced with a statement indicating that she did not agree with the decision of her deceased husband, a former service member (FSM), to decline SBP. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing that the applicant...
ARMY | BCMR | CY2010 | 20100007570
On 3 December 2009, this Board granted him relief by correcting his records to show he elected to terminate his SBP coverage within one year of his marriage to Sandra (he married her on 23 November 2001). On 31 December 2009, by letter, DFAS notified the applicant that as a result of the ABCMR's directive, his records were corrected to show he terminated SBP spouse coverage effective 31 October 2001. At the time of his retirement he was married to Linda and elected full spouse coverage...
AF | BCMR | CY2013 | BC-2013-00281
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-00281 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ _ APPLICANT REQUESTS THAT: He be allowed to terminate spouse coverage under the Reserve Component Survivor Benefit Plan (RCSBP) and to have his premiums reimbursed. DFAS states the applicant elected Option C (Immediate Annuity) of the RCSBP for his spouse and child effective...
ARMY | BCMR | CY2010 | 20100021362
The applicant states that on or about 21 July 2008 he completed a DD Form 2656 (Data for Payment of Retired Personnel) at the Army Retirement Services Office (RSO) at Fort Irwin, CA declining enrollment in the SBP. The RSO sent his wife a "Spouse Concurrence Letter Decline SBP," dated 21 July 2008, and a Spouse SBP Election Concurrence Statement via FedEx. The letter to the applicant's wife would not have been sent if he had not already completed a DD Form 2656.
ARMY | BCMR | CY2011 | 20110012663
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant states: * no one told him he needed to update his SBP election or that he had any choices that needed to be made with regard to the SBP when he updated his marital status in 2003 and 2005 at the Mayport Naval Station * he updated his records in both instances well within a year of each event * he was informed by three Defense Finance and Accounting Service (DFAS) personnel that he was eligible to discontinue SBP and receive...