IN THE CASE OF:
BOARD DATE: 16 SEPTEMBER 2008
DOCKET NUMBER: AR20080009433
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, in effect, that her participation in the Survivor Benefit Plan (SBP) be cancelled and that all premiums collected from her since her divorce, be refunded.
2. The applicant states, in effect, that SBP premiums were erroneously deducted from her pay after she and her husband divorced.
3. The applicant provides in support of her application, a copy of a letter from the Defense Finance and Accounting Service (DFAS), addressed to a Representative in Congress, dated 31 December 2007; and a copy of a letter from a Representative in Congress, addressed to her, dated 9 January 2008.
CONSIDERATION OF EVIDENCE:
1. The applicant retired from the United States Army on 10 February 1987.
2. The available information indicates that she originally elected SBP spouse only coverage for the individual who was her spouse at that time. He remained her beneficiary until they divorced on 13 October 1989. According to DFAS no notification was received regarding her divorce.
3. The applicant remarried on 25 May 1990. According to DFAS, no notification was received regarding her remarriage; therefore, her second husband automatically became an eligible beneficiary.
4. The applicants second husbands SBP coverage terminated based on their divorce date of 28 July 1995.
5. On 19 December 2007, DFAS received the necessary documentation to update the applicants SBP account and her SBP spouse coverage was suspended.
6. In a letter address to the applicants Representative in Congress dated 31 December 2007, the Director, DFAS Cleveland, stated that Title 31, United States Code, Section 3702(b)(1), commonly referred to as the Statute of Limitations or the Barring Act, states that a claim must be received within 6 years from the date the claim is made, and that since her documents were received on 19 December 2007, she was entitled to credit beginning on 19 December 2001. The Director, DFAS further stated the applicant has been issued an SBP premium refund in the net amount of $1,470.11 (gross SBP premiums of $1,521.87, less Federal Income Tax Withholding of $51.76). The Director, DFAS stated that the payment was being deposited into the applicants account; and that she may petition this agency to request a refund of the SBP premiums beyond the six year barring statute. The Director, DFAS also stated that they do not have the authority to change her military retirement pay account without authorization from this agency. This information was provided to the applicant by her Representative in Congress in a letter dated 9 January 2008.
7. Public Law 92-425, the SBP, enacted 21 September 1972, 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. Public Law 94-496, dated 14 October 1976 but effective 1 October 1976, provided that spouse costs would be suspended if marriage ends in death or divorce. A new spouse's eligibility to receive the SBP annuity and costs would be automatically resumed after a 1-year waiting period following post-retirement marriage.
DISCUSSION AND CONCLUSIONS:
1. The applicant divorced her first husband on 13 October 1989 and remarried on 25 May 1990.
2. The applicant and her second husband divorced on 28 July 1995. The paperwork regarding the divorce was received by DFAS on 19 December 2007. As a result of the barring statute, she was refunded the SBP premiums that she paid from 19 December 2001 through 19 December 2007.
3. In accordance with Public Law 94-496, which became effective on 1 October 1976, her first husbands coverage ended upon their divorce on 13 October 1989, and her second husbands coverage ended upon their divorce on 28 July 1995. Therefore, she is entitled a refund of the SBP premiums that she paid between her first and second marriages and from 29 July 1995 through 18 December 2001.
3. In view of the foregoing, it would now be appropriate to correct the applicants records as recommended below.
BOARD VOTE:
__XXX __ __XXX__ __XXX__ 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:
a. showing that the applicant made a timely request to discontinue the SBP deductions on 14 October 1989 and on 29 July 1995;
b. show that the applicant timely notified DFAS of her remarriage on 25 May 1990; and
c. as a result of the above correction, refunding to her all SBP premiums that should not have been collected and have not previously been refunded.
___ 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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