IN THE CASE OF:
BOARD DATE: 04 DECEMBER 2008
DOCKET NUMBER: AR20080013155
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, the refund of all of his Survivor Benefit Plan (SBP) premiums paid since the date of his retirement.
2. The applicant states that he desires to have all of his SBP premiums refunded to him because he never elected to participate in the SBP.
3. The applicant provides a letter from the Defense Finance and Accounting Service (DFAS) informing him that he was being refunded a portion of his SBP premiums based on his final divorce decree and copies of his divorce decrees.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army in El Paso, Texas on 14 March 1984 and remained on active duty as a track vehicle repairer, through a series of continuous reenlistments. He was married on 18 December 1987 and was promoted to the pay grade of E-6 on 1 July 1998.
2. The applicant completed his last overseas tour in Korea on 17 August 2000 and was transferred to Aberdeen Proving Ground, Maryland for his last duty assignment.
3. On 31 March 2004, he was honorably released from active duty and was transferred to the Retired List effective 1 April 2004. He had served 20 years and 17 days of total active service.
4. The divorce decree provided by the applicant shows that the applicant and his wife separated on 15 April 2003 and a final divorce was granted on 10 January 2007. He had two children from his marriage, one of which was under the age of 18 at the time of his divorce. The divorce decree specified that his spouse would receive 50% of the applicant's disposable military retired pay, that she would retain all applicable retired military benefits available to her under the Uniformed Service Former Spouses' Protection Act, including remaining a beneficiary under the SBP.
5. On 3 July 2008, the DFAS dispatched a letter to the applicant informing him that he would be refunded SBP premiums effective from the date of his divorce (January 2007) in the amount of $1,582.58. His current SBP premium deductions were changed to $0.00.
6. In the processing of this case a staff member of the Board contacted officials at the DFAS to determine what the applicant's original SBP election indicated. Officials at the DFAS indicated that on 24 December 2003, the applicant submitted a DA Form 2656 to the DFAS and elected not to participate in the SBP. However, that form did not contain his spouse's signature and as such was deemed an invalid election. Accordingly, he was automatically enrolled in the SBP under the full spouse coverage option.
7. Title 10 United States Code, Section 1448 provides, in pertinent part, that effective 1 March 1986, a married member is enrolled with spouse coverage on full retired pay at the time of retirement unless that spouse has concurred in writing to another election requested by the member pursuant to Department of Defense Financial Management Regulation, Volume 7B, Chapter 43. When the spouses concurrence is required, the signature indicating concurrence must be corroborated by one or more witnesses. This chapter also states, in pertinent part, that the Secretary of the Military Department concerned (or designee) may correct any election or any change or revocation of an election when the Secretary considers it necessary to correct an administrative error.
8. 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. An election, once made, was irrevocable except in certain circumstances. At that time, Soldiers who elected to decline participation in the SBP could do so without spousal concurrence.
9. Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouses written concurrence for a retiring members election that provides less than the maximum spouse coverage.
DISCUSSION AND CONCLUSIONS:
1. While the applicant clearly did elect not to participate in the SBP, his election was deemed invalid because he was still legally married and could not legally divest his wife's interest in protecting his retirement benefits without her approval. Accordingly, he was automatically enrolled in the SBP under the spouse only full coverage option.
2. However, once the applicant was legally divorced and provided a copy of the divorce decree to the DFAS, the DFAS initiated action to refund all premiums paid from the time of divorce and to suspend his SBP premium deductions.
3. 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
___X_____ __X______ __X______ 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.
_______ _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.
ABCMR Record of Proceedings (cont) AR20080013155
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20080013155
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2009 | 20090012836
In addition, he requests that his military records be corrected to show he elected RCSBP former spouse coverage. The applicant's military records show that he was honorably separated from the New Mexico ARNG on 31 January 2008 and he was transferred to the Retired Reserve. If he is requesting only that his RCSBP coverage be changed from insurable interest to former spouse, based on the evidence of record he has already been refunded the difference in premiums between insurable interest...
ARMY | BCMR | CY1996 | 9606446C070209
Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage in those cases where the retiree had elected spouse coverage at retirement The law stipulated that the retiree had to request the Defense Finance and Accounting Service to change the SBP participation from spouse to former spouse. The SBP Board recommended approval of the applicants request to change his SBP election from spouse to former spouse retroactive to date of divorce, 1 August 1988. ...
ARMY | BCMR | CY2014 | 20140007495
The applicant requests, in effect, correction of his records to show he elected Survivor Benefit Plan (SBP) coverage for his spouse within one year of his remarriage. The applicant provides: * DD Form 2656-6, dated 4 April 2014 * Certificate of marriage (Connie), dated 12 February 2013 * Emails to DFAS * Notification of Eligibility for Retired Pay at Age 60 * DD Form 1883 (SBP Election Certificate) * DD Form 2656 (Data for Payment of Retired Personnel), dated 7 July 2008 * National Guard...
ARMY | BCMR | CY2013 | 20130019660
The applicant enlisted in the U.S. Army Reserve (USAR) on 10 June 1992. She provided three letters of explanation in which she stated, in effect: a. she would like to suspend her SBP due to the fact that she was divorced before leaving active duty (Active Guard Reserve); b. she's requesting a refund of the premiums that were deducted from her retired pay for the months of August and September (2013) and any others that may follow; c. her monthly premiums of $117.23 should not have been...
ARMY | BCMR | CY2009 | 20090021899
IN THE CASE OF: BOARD DATE: 30 September 2010 DOCKET NUMBER: AR20090021899 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. The applicant retired on 1 May 1998. He was not married at the time and he elected SBP coverage for child-only coverage.
ARMY | BCMR | CY2009 | 20090002143
The applicant married the FSM in "1995," but he did not inform DFAS within a year of the marriage, so the applicant was not eligible. DFAS issued the applicant two payments which were later collected because she was not entitled to an SBP annuity because the FSM was not married at the time of his retirement and had not elected coverage for her within one year of their marriage. As a result, the Board recommends that all Department of the Army records of the FSM be corrected by showing that...
ARMY | BCMR | CY2010 | 20100028423
The applicant requests, in effect, correction of his record to show he changed his Survivor Benefit Plan (SBP) election to former spouse coverage or reinstatement of his former spouse's SBP coverage. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the members agreement) in those cases where the member was participating in the SBP or was still on active duty and had not yet made an SBP election. The law also permits the former spouse...
ARMY | BCMR | CY2009 | 20090015165
IN THE CASE OF: BOARD DATE: 6 April 2010 DOCKET NUMBER: AR20090015165 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. He sent a DD Form 149 (Application for Correction of Military Record) to the retired pay services in July 2009. As a result, the Board recommends that all Department of the Army records of the individual concerned by: a. showing his spouse signed and dated the DD Form 2656 on 28 January 2009 electing to participate in the SBP for children only coverage, b. showing that DFAS...
ARMY | BCMR | CY2015 | 20150001913
The applicant states: * he never received a 20-year letter because he had issues with his retirement points and active time * after his points were corrected, he still did not receive a 20-year letter and was thus not given an opportunity to make an election * once he became retirement eligible, his retirement orders were issued in 2013 and backdated to 2006 * at the time of his retirement, he completed a DD Form 2656 (Data for Payment of Retired Personnel) * he was not married; he placed...
ARMY | BCMR | CY2011 | 20110014744
The applicant requests, in effect, that the records of her deceased former spouse, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage. DFAS informed the Board's staff their records indicated that the FSM and applicant divorced on 1 April 2003. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing the FSM made a voluntary change in...