RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 December 2006
      DOCKET NUMBER:  AR20060006545


      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. John J. Wendland, Jr.         |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Mr. John M. Moeller               |     |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, in effect, that a debt in the amount of
$13,758.60 be forgiven and that she continue to receive Survivor Benefit
Plan (SBP) annuity payments.

2.  The applicant states, in effect, that she received a letter from the
Defense Finance and Accounting Service (DFAS) informing her that there was
a debt in the amount of $13,758.60 that she would have to pay.  She also
states, in effect, that her deceased husband, a former service member
(FSM), retired from the Army and enrolled in the Survivor Benefit Plan
(SBP) for coverage of his former spouse.  However, his previous spouse died
in November 1976 and the FSM discontinued the premiums.  The applicant
further states that she and the FSM married on 3 December 1977; the DFAS
was notified to resume SBP coverage for her; and a copy of their marriage
certificate was sent to the DFAS.

3.  The applicant also states that shortly after the FSM passed away, the
DFAS informed her she was entitled to an SBP annuity and would be receiving
a monthly check.  She states that she contacted the DFAS to verify the SBP
annuity checks were hers and was told they were.  She adds that she has
been receiving an SBP monthly annuity check for almost four years and now
DFAS has notified her that she must repay the money.  She asserts, in
effect, that it was the responsibility of the DFAS to deduct SBP premiums
from the FSM's retired pay prior to depositing the FSM's retired pay into
his bank account, and not her responsibility to make SBP payments, unless
she had been notified to do so.  The applicant also adds that the
representative she spoke with at the DFAS indicated the FSM should have
been checking his retired pay statement and should have realized there was
a mistake in his retired pay account.  The applicant stipulates to this
fact, but offers that the FSM handled the finances until he suffered
dementia, Parkinson's disease, and Alzheimer's disease, and she had no
knowledge there was a problem.

4.  The applicant concludes that she does not feel that this was her
mistake, maintains it was a mistake by the government, and, as a result,
she is going to suffer a tremendous hardship because her income is very
limited.  She states that the mistake made by the DFAS has resulted in the
indebtedness and she does not understand why it took so long for the DFAS
to discover its error.  The applicant looks to this Board for relief and
also advises the Board that she has appointed her daughter, L____ M.
D_______, as her Attorney-in-Fact to act in her name in this matter.

5.  The applicant provides a self-authored statement to the DFAS, dated 27
April 2006; DFAS, Retired and Annuity Pay, letter, dated 10 April 2006;
North Carolina Statutory Short Form Power of Attorney, dated 15 August
2002; and State of North Carolina, Cumberland County, Office of Register of
Deeds, Certificate of Death, dated 10 December 2002.

CONSIDERATION OF EVIDENCE:

1.  The FSM’s military service records show that he enlisted in the U.S.
Army Reserve on 14 July 1943, entered active duty on 4 August 1943, and was
honorably separated on 26 April 1946.

2.  On 6 May 1946, the FSM married F______ A_______.

3.  The FSM enlisted in the U.S. Navy and served on active duty from 12
July 1947 to 5 August 1948.  The FSM then enlisted in the U.S. Army on 6
August 1948 and served continuously on active duty until 31 May 1966, when
he honorably retired from active duty after completing a total of 20 years,
6 months, and 17 days of active federal service.

4.  The FSM's military service records contain a DA Form 2339 (Application
for Voluntary Retirement), dated 22 March 1966.  Item 10 (Election Under
Retired Serviceman's Family Protection Plan (DA Form 1041)) of this
document contains two "x" marks indicating "Not Elected."

5.  The FSM's military service records contain an AGPZ Form 977 (Data for
Retired Pay), dated 21 April 1966.  Item 29 (Retired Servicemen's Family
Protection Plan) of this document contains an "x" mark indicating "DA Form
1041 Attached."  However, the FSM's military service records are absent a
copy of a DA Form 1041.

6.  The FSM's previous spouse, F______ A_______, died in November 1976.

7.  The FSM and applicant married on 3 December 1977.

8.  The FSM died on 10 December 2002.  The Certificate of Death shows, in
pertinent part, that the FSM was married to the applicant at the time of
his death.

9.  In the processing of this case, coordination was made with the DFAS,
Retired Pay Branch, Cleveland, Ohio, in order to verify information
relevant to the FSM's SBP election and payments.  This coordination
confirmed that the FSM elected SBP coverage for spouse and child on 21
September 1972 and stopped paying SBP spouse costs when his spouse died in
November 1976.  Contrary to the applicant's belief, the DFAS official also
stated that the FSM did not notify the Retired Pay Branch that he had
remarried.  He did not pay any SBP costs from
1 January 1979 through 10 December 2002, the date of the FSM's death.

10.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that
military members could elect to have their retired pay reduced to provide
for an annuity after death to surviving dependents.

11.  The basic statutory provisions of SBP law are in chapter 73, Title 10,
U.S. Code and provide, in pertinent part, that in the event a person
remarries, coverage and costs for an election for a new spouse are
effective after one year of marriage or upon the birth of a child of that
marriage, whichever occurs first.

12.  Title 10, U.S. Code, section 1448(a)(6) (Election Out of Plan by
Person with Spouse Coverage Who Remarries), applies specifically to widowed
service members with existing SBP spouse coverage who later remarry.  The
statute requires them to affirmatively opt out of spouse coverage within
one year of the remarriage if they no longer desire it.  If such a service
member does not opt out in writing, resumption of SBP spouse coverage will
automatically begin after the first year of the remarriage is completed.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records)
prescribes the policies and procedures for correction of military records
by the Secretary of the Army, acting through the Army Board for Correction
of Military Records (ABCMR).  Paragraph 2-3 of this Army regulation
provides guidance on who may apply.  It states, in pertinent part, that
depending on the circumstances, a child, spouse, parent or other close
relative, heir, or legal representative (such as a guardian or executor) of
the Soldier or FSM may be able to demonstrate a proper interest.
Applicants must send proof of proper interest with the application when
requesting correction of another person's military records.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that a debt in the amount of $13,758.60
should be forgiven and her request to continue to receive the SBP annuity
payments, along with the supporting documents she provided, were carefully
considered.

2.  The evidence of record shows that the FSM elected SBP coverage for
spouse and child on 21 September 1972 and stopped paying SBP spouse costs
when his first spouse died in November 1976.  The evidence of record also
indicates that the FSM did not notify the Retired Pay Branch that he had
remarried and that he did not pay any SBP costs from 1 January 1979 through
10 December 2002, the date of the FSM's death.

3.  The evidence of record also shows that subsequent to the FSM's death,
the applicant (the FSM's widow) began receiving a monthly SBP annuity from
the DFAS, thereby indicating the DFAS somehow had recognized that the FSM
had remarried.

4.  The applicant claims that when she inquired into the matter, an
official at the DFAS informed her she was entitled to the monthly SBP
annuity checks.  In fact, the applicant received SBP payments over the
course of more than three years before it was discovered by the DFAS that
the FSM had not fully paid SBP spouse premiums before his death.

5.   There is no evidence of error on the Army’s part.  However, the
evidence of record shows that the DFAS took more than three years to
officially notify the applicant of the FSM's failure to pay the SBP spouse
premiums in full and to bill the applicant for the debt.

6.  It is not clear why it took the DFAS a full three years and four months
to discover that the FSM had not fully paid his SBP spouse premiums and
then bill the applicant for the debt.  As a matter of prudence in the
course of doing business, it would seem logical that the government would
verify that an FSM had made a valid SBP election and paid the requisite SBP
premiums prior to authorizing the payment of an SBP annuity to the
annuitant.  However, as a practical matter, the FSM should have advised the
DFAS of his remarriage, so that it could restart the deduction of the
necessary spouse premiums from his monthly retired pay.  Since he did not
do so, this resulted in his failure to pay any spouse premiums from January
1979 (when the applicant's property interest in the SBP would have vested)
through the date of his death, 10 December 2002.

7.  As a result, the DFAS established a debt of $13,758.60 for the
applicant to finish paying the SBP spouse premiums still owed by the FSM
before his death.  In other words, the DFAS does not appear to be seeking
recoupment of the annuity payments already paid out to her for the more
than three years after the FSM's death, but rather the payment of the
spouse premiums owed.  Therefore, the DFAS must apply 100 percent of the
applicant's monthly SBP annuity payments to the indebtedness until the debt
is paid in full.  Upon payment of the debt, the DFAS should resume or
continue to pay the SBP annuity to the applicant.

8.  Unfortunately, there is no legal basis or equitable basis (e.g., the
applicant was not the spouse married to the FSM during his military career)
for granting the applicant relief from what is a justified debt.  However,
it appears the applicant still has administrative relief with the DFAS by
requesting relief in the form of a waiver from the interest and penalties
on the basic SBP premium amount.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___KAN__  ___PMS_  ___JMM_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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 regarding
forgiveness of the entire debt amount.






                                  _____Kathleen A. Newman_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060006545                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/1219                               |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19660531                                |
|DISCHARGE AUTHORITY     |Title 10 USC, Section 3914              |
|DISCHARGE REASON        |Retired After 20 Years Service          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |137.0000.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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