IN THE CASE OF:
BOARD DATE: 12 FEBRUARY 2009
DOCKET NUMBER: AR20080015882
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 military records be corrected to show that she elected not to participate in the Survivor Benefit Plan (SBP).
2. The applicant states, in effect, that when she submitted her paperwork for retirement pay in the spring of 2007, she specifically noted that she did not wish to participate in the SBP. She contends that she had been married less than a year, that her marriage was strained, that her husband refused to sign the documents, and that her military career preceded her marriage to him. She points out that on her original retirement documents there was no beneficiary noted. However, when she received her first retired pay check, the SBP was subtracted. She indicates that she was divorced on 1 May 2008 and that she has not seen her ex-husband since 13 May 2007 when he left her bedside in the trauma unit at the local medical center following a domestic accident. She contends that her ex-husband only cared about the money and the benefits that he anticipated from her retirement. She also requests that the monies taken from her pay for the first year of eligibility be refunded.
3. The applicant provides a letter, dated 6 May 2008, she wrote to the Defense Finance and Accounting Service (DFAS); a copy of her Retiree Account Statement, dated 30 May 2007; and a copy of her final Judgment for Dissolution of Marriage in support of her application.
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 24 May 1947. Having prior enlisted service, she was appointed a Reserve officer in the U.S. Army Reserve (USAR) on
10 December 1968. She was promoted to lieutenant colonel in the USAR on
14 March 1986.
2. On 5 May 1990, the applicant received her notification of eligibility for retired pay at age 60 (her 20-year letter). Paragraph 3 of this letter pertains to the Reserve Component SBP (RCSBP) and the DD Form 1883 (Survivor Benefit Plan Election Certificate) and informed her that she had 90 calendar days from the date she received the letter to submit her DD Form 1883 or she would not be allowed to obtain SBP coverage until she applied for retired pay at age 60. It appears she did not return the DD Form 1883.
3. The applicant was transferred to the Retired Reserve on 25 September 1997.
4. The applicant married on 26 November 2005.
5. The applicants DD Form 2656 (Data for Payment of Retired Personnel), dated 3 May 2007, shows she is married. Section IX (Survivor Benefit Plan Election) on her DD Form 2656 is blank. Section XI (SBP Spouse Concurrence (Required when member is married and elects children only coverage, does not elect full spouse coverage, or declines coverage)) on this form is blank. Section X (Remarks) states, "Though married, I have opted out of the SBP. I have been married to my husband for only one year and am currently estranged from him - my husband is unwilling to sign this document. He is self-sufficient and covered by his own retirement plan so this will not present him with a financial burden. I have no other dependents."
6. The applicant divorced on 1 May 2008. He former husband was not awarded SBP.
7. The applicant provided a letter, dated 8 May 2008, she wrote to DFAS enclosing a copy of her divorce decree requesting a change in marital status, and requesting a review of SBP assessments to date. Based on this letter, DFAS appears to have suspended the SBP collections.
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.
9. Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse's written concurrence for a retiring member's election that provides less than the maximum spouse coverage.
DISCUSSION AND CONCLUSIONS:
The applicant's contentions were considered. However, it appears she was automatically enrolled in the SBP for spouse coverage since she was married and could not provide spousal concurrence to her declination of coverage, as required by law, at the time she submitted her DD Form 2656 on 3 May 2007. Therefore, there is no basis for granting the applicants request.
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.
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