IN THE CASE OF:	  

		BOARD DATE:	        24 March 2009

		DOCKET NUMBER:  AR20080016658 


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 reconsideration of an earlier appeal that his Survivor Benefit Plan (SBP) coverage be dropped.

2.  The applicant states, in effect, he elected SBP coverage when he retired in 1996.  He and his wife divorced in May 2006 and he remarried in October 2006.  His new spouse is a retired Soldier.  Following his 2006 marriage, he deployed to Iraq as a civilian.  While in Iraq, he discovered his personnel and financial affairs required updating.  He made an appointment with the local Judge Advocate General’s (JAG) office and presented his 2006 divorce decree and 2007 marriage license.  His intent was to show his new wife as beneficiary and to cancel SBP.  Because of the advice he received, he ended up adding his new wife as his beneficiary and as recipient of SBP.  The applicant never wanted this, as his new wife is a military retiree with her own pension annuity.

3.  The applicant states that after the actions taken in Iraq, he discovered he could not stop his SBP premiums, thus he is petitioning this Board.

4.  The applicant provides a State of North Carolina, County of New Hanover, Divorce Judgment, dated 19 May 2006; a State of South Carolina, License and Certificate for Marriage, dated 7 October 2006; and a Notarized SBP election, dated 22 January 2009.


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080006882 on 23 September 2008.

2.  The applicant’s divorce decree and marriage license are considered new evidence and require reconsideration of his request by the Board.

3.  The applicant enlisted in the North Carolina Army National Guard on 6 June 
1975 and entered active duty in an Active Guard Reserve status on 4 September 1986.  He was promoted to sergeant first class on 3 February 1992.

4.  A DD Form 2656 (Data for Payment of Retired Personnel), dated 18 September 1996, shows in Section VII (SBP Elections) that the applicant elected Spouse and Children SBP coverage based on full gross pay without supplemental SBP.  This election was for his first wife.

5.  On 30 September 1996, the applicant was honorably released from active duty for the purpose of retirement under the provisions of the voluntary early retirement program.  On 1 October 1996, he was placed on the Retired List.

6.  On 19 May 2006, the applicant and his first wife divorced.

7.  On 7 October 2006, the applicant remarried.

8.  A DD Form 2656-6 (Survivor Benefit Plan Election Change Certificate), dated 4 March 2008, shows in Section III (Conditions that Triggered Eligibility to Change Coverage) that the applicant changed the named beneficiary to his new spouse.

9.  A notarized letter from the applicant’s new spouse, dated 22 January 2009, states she and the applicant agreed that his SBP coverage be dropped.  While deployed to Iraq, the applicant discovered the beneficiary for his military retirement pay was his ex-wife.  He went to the JAG office and the personnel office in Iraq to request his beneficiary be corrected.  He was told his SBP beneficiary required changing as well.

10.  The applicant’s spouse further stated when her husband told her what he was being told to do, she immediately told him that she did not need SBP.  She said she only told him to remove his ex-wife’s name and add her name as beneficiary.  When all was said and done, they realized that they had added her to the SBP and it was still in effect.  All they want at this time is for the SBP to be cancelled.

10.  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.

11.  Public Law 94-496, enacted 14 October 1976 but effective 1 October 1976, changed the waiting period for new spouse's eligibility reduced to 1 year following post-retirement marriage.

12.  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 (requiring a payback with interest of SBP premiums prior to first anniversary of remarriage).  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. No premiums will be refunded to those who opt to disenroll.

DISCUSSION AND CONCLUSIONS:

1.  The applicant believes he inadvertently elected to maintain the existing SBP coverage and added his new wife while he served as a civilian in Iraq.  He states after realizing that his ex-wife was still being carried as his beneficiary, he requested to change his beneficiary from ex-wife to his current wife.  He was told to update his coverage for SBP as well as beneficiary.  In the process he made the election to resume existing coverage for his new wife instead of making a decision to cancel his SBP coverage.

2.  In actuality when the applicant failed to opt out of SBP coverage within 1 year of his marriage, SBP coverage resumed for the benefit of his second spouse by operation of law.  The DD Form 2656-6, dated 4 March 2008, merely notified DFAS of his remarriage, the name of his new spouse, and the need to resume SBP deductions for his retired pay.  Even if he had not filed the form, SBP coverage would have resumed for the benefit of his second wife.

3.  It appears that the applicant failed to opt out of resuming SBP coverage within 1 year of his remarriage.  However, his spouse concurred with his decision not to participate in the SBP.  It would be equitable to correct his DD Form 2656-6 to show he elected not to resume any SBP coverage for his new spouse on 10 October 2006 and to correct his applicable records to show his DD Form 2656-6 was accepted and processed by the appropriate office in a timely manner.

BOARD VOTE:

___X____  ___X____  ___X____  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 amendment of the ABCMR’s decision in Docket Number AR20080006882, dated 23 September 2008.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he completed the DD Form 2656-6 on 10 October 2006 and elected not to participate in coverage for his new spouse and that the DD Form 2656-6 was accepted and processed by the appropriate office in a timely manner.


															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)                                         AR20080016658



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ABCMR Record of Proceedings (cont)                                         AR20080016658



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