IN THE CASE OF:
BOARD DATE: 22 May 2008
DOCKET NUMBER: AR20070019000
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that his participation in the Survivor Benefit Plan (SBP) be cancelled.
2. The applicant states that after he remarried in 2004 he thought the SBP would be a benefit for his wife, so he sent their marriage certificate to the Defense Finance and Accounting Service (DFAS). However, they were devastated when DFAS informed them they owed a debt of $2,312.56 plus monthly premiums of $100.87. They have to budget every dollar, every month, to eradicate their debts and cannot afford to incur additional debt.
3. The applicant provides his marriage license; five letters from DFAS, one dated 3 December 2007, two dated 14 January 2008, one dated 25 February 2008, and one dated 26 February 2008; seven Retiree Account Statements; his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 January 1987; an uncompleted DD Form 2789 (Waiver/Remission of Indebtedness Application); a DD Form 2656-2 (Survivor Benefit Plan (SBP) Termination Request); and a current statement of concurrence from his spouse.
CONSIDERATION OF EVIDENCE:
1. After having had prior service, the applicant enlisted in the Regular Army on 4 January 1971.
2. On 12 January 1987, the applicant completed a DA Form 4240 (Data for Payment of Retired Army Personnel) and elected to participate in the SBP for spouse only coverage. His spouse at the time was Ivonne.
3. The applicant retired on 31 January 1987.
4. The applicants marriage to Ivonne ended on an unknown date for an unknown reason.
5. On 3 December 2004, the applicant married Gloria.
6. 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. Changes in SBP options are not authorized except in specific instances or as authorized by law.
7. 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.
8. 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. An election to terminate spouse coverage under this law, once made, is irrevocable.
DISCUSSION AND CONCLUSIONS:
1. The applicant elected to participate in the SBP for spouse only coverage when he retired. When his first marriage ended, his SBP was suspended. At the first anniversary of his remarriage in December 2004, his SBP automatically restarted. The only problem in this case is that the applicant did not notify DFAS that he had remarried until almost three years after his marriage, resulting in a debt retroactive to December 2005.
2. However, it appears the applicant is currently working to pay off some debts and he cannot afford this additional SBP debt. Although there is no government error in this case, it would be equitable to correct the applicants records to show he requested termination of his SBP within one year of his marriage in December 2004. This termination would be irrevocable. His spouse has concurred with his request.
BOARD VOTE:
___xx_____ ___xx___ __xx__ 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 requested termination of his SBP coverage on 1 January 2005; that his request was processed in a timely manner, thus voiding his current SBP debt; and that he be refunded any SBP premiums he paid due to his December 2004 marriage.
_ _______ xxx_____________
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
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