RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 June 2007
      DOCKET NUMBER:  AR20070005887


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


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Mr. Chester A. Damian             |     |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 she not be required to pay back
due Survivor Benefit Plan (SBP) premiums prior to being paid the SBP
annuity.

2.  The applicant states that her deceased spouse, a former service member
(FSM), believed he was paying the SBP costs.  She believed they were being
paid.  Loss of the SBP benefit will require her to sell her home and is
creating severe health and welfare concerns.

3.  The applicant provides a Power of Attorney for Lieutenant General
Robert F___ to act as her attorney-in-fact for the sole purpose of
appealing the SBP decision [of the Defense Finance and Accounting Service
(DFAS)]; a DFAS letter, dated 12 February 2007; an Annuitant Account
Statement, dated             21 February 2007; a DFAS letter, dated 2 March
2007; an Annuitant Account Statement, dated 23 March 2007; and the FSM’s
death certificate.

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service, the FSM was commissioned a
second lieutenant on 27 January 1943.

2.  The FSM retired on 1 May 1969 in the rank of lieutenant colonel, O-5.

3.  Records at DFAS show the FSM enrolled in the SBP in 1972 during the
first Open Season.  He might have been married to Helen at the time (his
wife at the time he retired).  This marriage ended on an unknown date, and
his SBP costs were apparently suspended.

4.  Records at DFAS show the FSM married the applicant on 28 February 1981.
 He apparently did not notify DFAS that he remarried.

5.  The FSM died on 19 December 2006.

6.  By letter dated 12 February 2007, DFAS informed the applicant her
eligibility for the SBP annuity was established and the monthly annuity
payment would be $2,487.16.  By letter dated 2 March 2007, DFAS informed
the applicant that SBP costs were not fully paid by the FSM and as a result
100 percent of her monthly SBP annuity payments would be applied to the
indebtedness (of $59,833.65).

7.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The
SBP 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. It declared a 12-month Open Season for those members who
retired prior to enactment of the law.  The SBP is primarily funded by
these retired pay deductions.

8.  Public Law 94-496, enacted 14 October 1976 (but effective 1 October
1976), provided for the suspension of spouse costs if marriage ends in
death or divorce.

9.  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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The Board is empathetic to the applicant’s circumstances.  However, she
provides no evidence (such as his annual Retiree Account Statement) to show
why the FSM believed he was paying the SBP costs.

2.  The FSM enrolled in the SBP in 1972.  It appears his marriage to his
wife at the time ended either in death or divorce, and he evidently
informed DFAS that his marriage ended because it appears SBP costs were
suspended.  He remarried the applicant in February 1982 and seemingly
failed to inform DFAS he remarried.

3.  Without evidence, such as the FSM’s annual Retiree Account Statements,
to show the FSM actually paid the SBP premiums, regrettably there is
insufficient evidence that would warrant granting the relief requested.
The Board owes a fiduciary duty to the SBP and its participants by ensuring
annuities are properly and fully funded.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__lds___  __jrs___  __cad___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                  __Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070005887                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070605                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |128.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]