RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           19 May 2005
      DOCKET NUMBER:  AR20040005870


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |Member               |

      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 that his Survivor Benefit Plan (SBP) be
cancelled.

2.  The applicant states that he was not properly counseled on all the
requirements of the SBP nor provided written information regarding
cancellation provisions.  In a 2 April 2003 letter to the Board with his
original application, he stated he was a widower when he remarried on 14
February 2002.  In February 2003, the Defense Finance and Accounting
Service (DFAS) began withholding SBP costs in the amount of $221.42.  He
and his wife immediately requested that DFAS stop taking out SBP costs but
were told that DFAS could not do so.

3.  The applicant provides the seven exhibits listed in counsel's statement
and a concurrence from his wife.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states that the law is clear that a retired member who elected
to participate in the SBP, whose participation is suspended due to death or
divorce, and who subsequently remarries, is entitled to elect to opt out of
the SBP.  However, there is no systematic provision regarding a formal
written notification from DFAS to any retiree that DFAS intends to resume
SBP premium deductions once remarried.  If the Board determines that such a
notification should have been made, then it would be in the interest of
justice that the applicant's request for relief be granted.  DFAS should
make it a standard practice to notify retirees in writing of its intent to
reinitiate SBP benefits once the member has married again.

2.  Counsel further states that Title 10, U. S. Code requires a notice to
the spouse of a retired person if that person makes an election to opt out
of the SBP. Since the law codifies notice of changes to the SBP for
spouses, it should reason that a retired person who remarries should be
notified of [DFAS's] intent to reinstate the SBP.  Counsel provides a
[DFAS] Claims Appeals Board Decision wherein it was ruled the petitioner,
who through no fault of his did not have his SBP restarted by DFAS until 7
years after he remarried, was liable for back SBP costs retroactive to the
date of his second marriage.  Based on the ruling, the petitioner would be
responsible to fund the SBP after the first year of his second marriage for
as long as he was married to his second wife.  However, the converse does
not necessarily apply in the applicant's case because he did pay for SBP
coverage that he did not knowingly elect for his second wife.

3.  Counsel provides an extract from Title 10, U. S. Code, section 1448 and
a copy of a Claims Appeals Board Decision dated 30 September 1998.
CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service, the applicant was commissioned
and entered active duty on 19 June 1961.  He retired on 1 August 1971 in
the rank of major.

2.  In October 1973, during the first Open Season, the applicant elected to
participate in the SBP for spouse coverage.  His spouse died on 25 August
1996 and his SBP coverage was suspended.

3.  The applicant remarried on 14 February 2002.  DFAS resumed deducting
SBP premiums from his retired pay effective 1 March 2003.  On 2 April 2003,
the applicant applied to the Board for correction of his records to cancel
his SBP.  The Board did not consider and disapprove his request but his
case was administratively closed on 13 November 2003.

4.  Counsel for the applicant provides a Claims Appeals Board Decision.  In
that case, the retiree's SBP deductions were suspended in September 1983
when he divorced.  He remarried in December 1988; however, due to an
administrative error his deductions were not restarted until 1997, causing
an indebtedness of over $24,000.  The Claims Appeals Board noted that the
member's spouse became his SBP beneficiary one year after they married
because he did not decline SBP coverage within that year, she would be
eligible for the annuity had he died before DFAS began to deduct premiums,
and the debt was valid.

5.  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.
Elections are made by category, not by name.  Changes in SBP options are
not authorized except in specific instances or as authorized by law.  An 18-
month Open Season was conducted from 21 September 1972 through 20 March
1974, in which all pre-1972 retirees were given the option to enroll.  The
Department of the Army contacted all previously retired service members and
explained to them the benefits and procedures provided by SBP.

6.  Public Law 99-145, enacted 8 November 1985, permitted a previously
participating retiree upon remarriage to elect not to resume spouse
coverage or to increase reduced coverage for the latter spouse (requiring a
payback with interest of SBP premiums prior to first anniversary of
remarriage).  Changes must be made prior to the first anniversary of
remarriage or else the previously suspended coverage resumes by default on
the first day of the month following the first anniversary of the
remarriage, with costs owed from that date.  An election to terminate
spouse coverage under this law, once made, is irrevocable.
7.  Every issue of Army Echoes, the Army bulletin published and mailed to
retirees to keep them abreast of their rights and privileges and to inform
them of developments in the Army, at least since the January through March
1998 issue, has included a highlighted reminder to contact DFAS, with the
contact addresses and phone numbers, within one year of the event in case
of a change in marital status to make or update an SBP election.

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged that there is no systematic provision regarding a
formal written notification from DFAS to any retiree that DFAS intends to
resume SBP premium deductions once remarried.  However, there should be no
need for one.

2.  When a member elects to participate in the SBP, his or her election is
made by category.  When a member elects spouse coverage, that election is
normally irrevocable.  That fact should have been made known to the
applicant when he initially elected to participate in the SBP.   When he
elected spouse coverage, that coverage was for any spouse he might have.
Therefore, he did knowingly elect SBP coverage for his second wife.

3.  One reason Congress determined that the spouse of a retired person must
be notified if that person makes an election to opt out of the SBP was
because the spouse is not normally a military member.  The spouse normally
has no direct source of military benefits information except as provided
through his or her military spouse.  Unfortunately, past experience showed
that many military members did not keep their spouses informed of their
military benefits.

4.  The applicant, as a military retiree, has direct sources he can go to
for information.  While he contends he was not properly counseled on all
the requirements of the SBP nor provided written information regarding
cancellation provisions, he does not contend he was given misinformation
concerning the status of his SBP upon his remarriage.  Army Echoes informed
him he should keep DFAS apprised of his marital status within one year of
any change in that status to make or update an SBP election.  It appears he
informed DFAS he remarried; however, it appears he failed to ask how his
remarriage would affect his SBP.

5.  Nevertheless, it is noted that the applicant retired prior to the
enactment of the SBP.  His spouse SBP coverage had been suspended for 6
years when he remarried in February 2002.  His SBP was restarted on 1 March
2003 and he began immediately to try to cancel his SBP under the provisions
of Public Law 99-145.  His wife concurs with his request to terminate the
SBP coverage.  As a matter of equity, the Board concludes that his records
should be corrected to show he elected not to resume his SBP coverage upon
his remarriage.

BOARD VOTE:

__rjw___  __bje___  __lmd___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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
showing that he, with the consent of his spouse, elected on 1 March 2002
not to resume his SBP spouse coverage.




            __Raymond J. Wagner___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040005870                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050519                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |137.03                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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