RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 May 2007
	DOCKET NUMBER:  AR20060014324 


	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. Gerard W. Schwartz

Acting Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. William F. Crain

Chairperson

Mr. Donald L. Lewy

Member

Mr. Roland S. Venable

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, correction of his records to show he changed his category of participation in the Survivor Benefit Plan (SBP) from child only coverage to spouse and child coverage for the period 11 December 1980 through 30 June 1989, suspending his SBP spouse premiums based on his divorce from his second spouse, and then reinstating SBP spouse only coverage effective 23 October 1999.

2.  The applicant states, in effect, that he is a 20-year Army veteran and retiree who has been handed an injustice and is seeking justice with respect to his SBP coverage.  The applicant states, in effect, when he retired from the Army on
30 June 1979, he was a single parent and elected SBP coverage for his 2-year old daughter in order to provide her a degree of financial protection in the event of his death.  On 11 December 1980, he married Janice H_______, who also had a daughter.  The applicant states, in effect, that after his marriage he contacted an Army Retirement Services Officer (RSO) and inquired about changing his SBP election to add SBP coverage for his spouse (i.e., spouse and children coverage).  The applicant states that he was informed that the only time he would be able to add his spouse to his SBP would be if a decision was made to offer coverage during an SBP Open Season.

3.  The applicant provides a self-authored statement, dated 30 September 2006, that offers a brief summary of his 20-year Army career, highlighting both his enlisted service and service as a commissioned officer after graduating from Officer Candidate School (OCS).  The applicant states that he served two and one-half years in Vietnam, attained the rank of captain (CPT), reverted to enlisted status in the rank of staff sergeant (SSG) due to the reduction in force in June 1973, and was subsequently promoted to the rank of sergeant first class (SFC).  He adds that he retired from the Army as an SFC (E-7) and, upon attaining a combined total of 30 years of active service and time on the Retired list, he was advanced to the grade of CPT on the Retired list, the highest grade he had held.

4.  The applicant concludes his statement by requesting that his SBP "buy-in" be based on the rates that were current in December 1980 when he first inquired about SBP spouse coverage, continue with those rates through 30 June 1989 when his retired rank and pay grade was changed to the highest grade he held, suspending SBP spouse premiums based on his divorce from his second spouse, and then allowing him to reinstate SBP spouse coverage and payment of premiums beginning in October 1999 to cover his current spouse.


CONSIDERATION OF EVIDENCE:

1.  The applicant's military service records show that he enlisted in the Regular Army and entered active duty on 23 June 1959.  He attained the rank of SSG
(E-6), completed OCS, and was honorably discharged on 5 September 1968 to accept appointment as a commissioned officer.  On 6 September 1968, the applicant was appointed as a commissioned officer in the infantry, he attained the rank of CPT (O-3E), and then reverted to enlisted status on 11 September 1973 in the rank of SSG (E-6).  The applicant continued to serve on active duty, attaining the rank of SFC (E-7), and was honorably retired from the Army in the rank of SFC (E-7) on 30 June 1979 after completing a total of 20 years and
8 days active service.

2.  The applicant's military service records show that, as of 29 September 1977, he was married to Jureporn S_____ S____ and that he had 4 children.  However, the applicant's records are absent a marriage certificate or a divorce decree regarding this marriage.

3.  The applicant's military service records contain a DA Form 2339 (Application for Voluntary Retirement), dated 12 March 1979.  Item 32 (Remarks) of this document, in pertinent part, contains the statement, "I have been briefed concerning the Survivor Benefit Plan.  I understand that I will automatically be in the plan and will pay the full cost of coverage for my wife and children if applicable, unless I submit an election form to the contrary prior to my retirement."  This document also shows that the applicant and a representative of the applicant's supporting U.S. Army personnel office both signed the form.

4.  On 7 June 1979, the applicant completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  Part IV (Survivor Benefit Plan Election) of the
DA Form 4240 shows, in pertinent part, that the applicant indicated in Item 13 that he was not married, in Item 14 that he had dependent children, and in Item 15c that he elected dependent child only SBP coverage.  However, the applicant failed to elect either a full or reduced SBP annuity in Item 16.  Item 17 (Name of Spouse) contains the entry "Divorced" and in response to the statement, "I have the following dependent children" shows the following entry, [Name] "M______, M_____", [SSN] "None", [Date of Birth] "16 June 77", and [Relationship] "DAU."  Part VIII (Certification) of the DA Form 4240 shows that the applicant signed the document and that it was witnessed by a U.S. government official of the U.S. Army Transfer Point, 24th Infantry Division, Fort Stewart, Georgia.  Part IX (Survivor Benefit Plan Certificates) on the reverse side of the DA Form 4240 is absent any entries concerning the applicant's spouse being informed and 
counseled with respect to the available SBP options.  However, since the applicant indicated he was divorced at the time, completion of this portion of the form would not be required.

5.  The applicant's military service records show that he was advanced on the Retired List to the grade of CPT (O-3E), effective 23 June 1989.

6.  The applicant's military service records are absent any evidence, and the applicant fails to provide sufficient documentary evidence, that shows he married Janice H_______ on 11 December 1980 and acquired a stepdaughter.  In addition, the applicant's military service records are absent any evidence, and the applicant fails to provide sufficient documentary evidence, that shows he divorced Janice H_______ on 7 June 1988.

7.  The applicant's military service records are absent any evidence, and the applicant fails to provide sufficient documentary evidence, that shows he married Angela _______ in October 1999.

8.  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.  Retiring members and spouses were to be informed of the SBP options and effects.

9.  Title 10, United States Code, Chapter 73 (10 U.S.C. 1447 et. seq.), provides the basic statutory provisions of SBP law.  This statute provides that the SBP was designed to give income protection not only to the retiree's spouse, but also to their children until they become self-supporting (i.e., until they are no longer dependents).  This document provides that a spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are: (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment.

10.  10 U.S.C. 1447 also provides that child coverage may be elected with or without spouse (or former spouse) coverage and that children are eligible for SBP payments as long as they are unmarried, under age 18, or under age 22, if still in school.  A child who is disabled and incapable of self-support remains eligible if the disability occurred before age 18 (or before age 22, if a full time 
student); however, marriage at any age will terminate a child's eligibility.  In 
addition, if a retiree elects former spouse and children coverage, only those eligible children from the marriage between the retiree and his former spouse are covered.

11.  Public Law 101-189, enacted 29 November 1989, established an Open Season to be conducted 1 October 1991 through 30 September 1992.  Public Law 101-510, enacted 5 November 1990, delayed the start of the Open Season to 1 April 1992 through 31 March 1993.  Extensive publicity was given this SBP Open Season in 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) and other Army publications.

12.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 through 29 February 2000.  Extensive publicity was given this SBP Open Season in Army Echoes and other Army publications.

13.  Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006.  Extensive publicity was given this SBP Open Season on Department of Defense websites, Army Echoes and other Army publications, and by military veteran organizations.

14.  Pursuant to 10 U.S.C. 1448(a)(5), a retired member who marries after retirement and who, at the time of marriage, has no dependent children and has not previously elected for spouse coverage may, within one year of the marriage, elect to cover his spouse under the SBP.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request was carefully considered; however, the applicant provides insufficient documentary evidence to support his request.

2.  The evidence of record indicates that the applicant was divorced and had one dependent child at the time he enrolled in the SBP in June 1979.  The evidence of record also confirms that the applicant elected "Child only" SBP coverage on the DA Form 4240.  The applicant acknowledged that he received information on the SBP elections available to him and was counseled about the effects of those elections.  Because he was divorced at the time, he was not required to elect either spouse or former spouse SBP coverage.

3.  The evidence of record shows that the applicant's daughter remained eligible for SBP child coverage until at least her 18th birthday (i.e., 16 June 1995) and the possibility exists that she remained eligible for SBP coverage up until her 22nd birthday (i.e., 16 June 1999).
4.  The evidence of record indicates that the applicant married his second spouse in December 1980 and married his third spouse in October 1999.  Therefore, the applicant had at least two opportunities to "buy-in" and add SBP spouse coverage (i.e., during the Open Season from 1 March 1999 through 29 February 2000 and the Open Season from 1 October 2005 through 30 September 2006). However, there is no evidence of record to show that the applicant took necessary action to add spouse coverage to his SBP at any time when afforded the opportunity to do so.  Additionally, the applicant had the opportunity to elect for spouse coverage within 1 year of his marriage to his third spouse under 10 U.S.C. 1448(a)(5), but apparently failed to do so.  Although the applicant alleges the Retirement Services Officer failed to tell him about the opportunity to add his new spouse within 1 year of their marriage, he acknowledges he knew he could add coverage during an open season, but failed to do even that.  Therefore, based on the available evidence, there is no basis for granting the applicant's request.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___WFC _  ___DLL _  ___RSV _  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.




    ___William F. Crain_____
          CHAIRPERSON


INDEX

CASE ID
AR20060014324
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/05/31
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19790630
DISCHARGE AUTHORITY
Title 10, USC, 3914  
DISCHARGE REASON
Retirement
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.

2.

3.

4.

5.

6.