RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 September 2007
	DOCKET NUMBER:  AR20060011960 


	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. Dean L. Turnbull

Analyst


The following members, a quorum, were present:


Mr. Curtis L. Greenway

Chairperson

Mr. Michael J. Flynn

Member

Mr. Edward E. Montgomery

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 he not be charged for Survivor Benefit Plan (SBP) premiums that the Defense Finance and Accounting Service (DFAS) said he should have paid over a 10.5 year period and that any SBP premium already deducted from his retired pay be refunded to him.

2.  The applicant states that once his first spouse died on 28 November 1992, he thought he no longer had SBP premiums deducted from his pay.  He states that after his second marriage in 23 September 1995, he did not need to resume SBP because his second spouse was already receiving SBP payments after the death of her first spouse.  He further states that if he had been alerted that his SBP premiums were being resumed he would have cancelled SBP.  However, his retiree account statements did not reflect deductions for SBP premiums (until after his second's spouse death).

3.  The applicant provides:

     a.  a copy of a letter from Defense Finance and Accounting Service (DFAS), dated 18 July 2006;

     b.  a copy of a letter, dated 14 August 2006;

     c.  a copy of a Retirement Accounting Statement, dated 1 September 2006; and

     d.  a copy of a Florida Marriage Record and additional documentation pertaining to the applicant's second spouse’s SBP from her former husband. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he entered active duty on 23 June  
1942 and retired as a major on 24 September 1977.  At the time he retired he elected SBP for his spouse to provide an annuity based on the full amount of his retired pay.

2.  His first spouse died on 28 November 1992.  The records show that he requested cancellation of his SBP premium on 16 December 1992.  He remarried on 23 September 1995 and 11 years later his second spouse died on  
30 June 2006.

3.  In the letter from DFAS, it was stated that a retroactive adjustment was made to the applicant's SBP portion of his retired pay based on his second marriage date of 23 September 1995 and this adjustment in coverage would change the SBP cost effective 1 October 1996 the first of the month following the first anniversary of his second marriage.  The applicant was not charged for SBP from 1 October 1996 to 30 June 2006, but should have been.  According to the Retirement Accounting Statement, the first collection action started on 1 September 2006 in order to recoup all SBP premiums the applicant should have paid during his second marriage but did not.

4.  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.

5.  Title 10, United States Code, section 1450(b)(3) provides that if the surviving spouse or former spouse remarries before reaching age 55 and that marriage is terminated by death, annulment, or divorce, payment of the annuity shall be resumed effective as of the first day of the month in which the marriage is so terminated.  However, if the surviving spouse or former spouse is also entitled to an annuity under the Plan based upon the marriage so terminated, the surviving spouse or former spouse may not receive both annuities but must elect which to receive.

6.  In the processing of this case the Board’s staff contacted the applicant.  The applicant has now provided documents to show that his second wife was receiving SBP from her former husband, a lieutenant colonel in the Regular Air Force.

7.  The Board’s staff also contacted the Senior Associate Counsel, Military and Civilian Pay Law Directorate, Office of General Counsel, Defense Finance and Accounting Service, who stated that the prohibition on a surviving spouse receiving an SBP annuity as the widow of two different members is established in 10 U.S.C. § 1450(b)(3).  This provision was applied by the Federal courts in the case of Croteau v. United States, 823 F.2d 539 (Fed. Cir. 1987).

DISCUSSION AND CONCLUSIONS:

1.  The records show that the applicant did elect spouse coverage upon his retirement; however, the SBP spouse coverage for the benefit of his first spouse was suspended after her death in 1992.  Upon remarriage to the second spouse, it appears that the applicant was not aware he had to elect not to resume spouse coverage prior to the first anniversary of remarriage.  Therefore, his previous suspended coverage was automatically resumed by default on 23 September 1996.

2.  The applicant’s contention that he would not have elected to continue SBP for his second wife is accepted.  Her first husband was a lieutenant colonel and the applicant was a major, and she could only receive SBP from one of them.  Since her former husband would have a higher pay from which to calculate SBP, it would have been in her best interest to collect her first husband’s SBP.  Therefore, there would be no reason for the applicant to pay for SBP.  As such, it would be in the interest of justice to correct the applicant's records to show he timely elected not to resume SBP for his second wife and, as a result of that correction, having DFAS repay any portion of the SBP premiums already collected.

BOARD VOTE:

___eem__  ___mjf__  ___clg__  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 the applicant elected not to resume SBP spouse coverage upon remarriage and, as a result of that correction, returning to him any portion of the SBP premiums already collected.




_______Curtis L. Greenway_________
          CHAIRPERSON




INDEX

CASE ID
AR20060011960
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070412
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.