IN THE CASE OF:
BOARD DATE: 7 MAY 2009
DOCKET NUMBER: AR20080018504
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, correction of his records to show his current spouse is covered under the Survivor Benefit Plan (SBP).
2. The applicant states that he was legally divorced from his former spouse at the time of his retirement; however, he had an automatic election for SBP. He states he has been paying for full spouse coverage under the SBP since his retirement date of 1 October 2003. He remarried on 21 March 2006 and would like his current spouse covered under the SBP.
3. The applicant provides the following documents in support of his application: his Marriage Register, issued on 8 May 2006; his divorce decree; a letter, dated 8 January 2009, from the Army Review Boards Agency, Arlington, VA; a letter, dated 27 October 2003, from the Defense Finance and Accounting Service (DFAS); his Summary of Retired Pay Account; his Designation of Beneficiary Form Information with accompanying SBP Automatic Coverage Fact Sheet; a Form W-4 (2003) (Employee's Withholding Allowance Certificate); and his Retiree Account Statement.
CONSIDERATION OF EVIDENCE:
1. The applicant married his first wife, J___, on 3 January 1981. He enlisted in the Regular Army on 23 September 1983 and continued to serve on active duty.
2. The applicant and J____ were divorced on 21 May 2001. The divorce decree does not mention SBP. He and his first wife, J____, had one child who was 18 years old at the time of their divorce.
3. The applicant retired on 1 October 2003 in the rank of sergeant first class.
4. His Summary of Retired Pay Account, prepared on 27 October 2003, indicates the applicant had automatic SBP spouse coverage effective 1 October 2003.
5. The applicant married his current wife, B_____, on 21 May 2006.
6. His Retiree Account Statement shows that the applicant had been paying SBP premiums for spouse coverage at full base amount.
7. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. Election or declination to participate in the SBP must be made prior to the effective date of retirement or else coverage defaults to automatic spouse coverage, full base amount.
8. Title 10, U. S. Code, section 1448(a)(5) provides that a person who is not married and has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP. Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions have been carefully considered. There is sufficient evidence on which to grant the full relief requested.
2. The applicant retired on 1 October 2003. He was not married at the time; however, he was automatically enrolled in the SBP for spouse coverage at full base amount.
3. Records at DFAS show the applicant has been paying premiums for SBP spouse coverage.
4. The applicant remarried on 21 May 2006.
5. As a matter of equity, it would be appropriate to amend the applicant's records to show he was not enrolled in the SBP effective 1 October 2003.
6. It would also be appropriate to correct the applicant's records to show he elected to participate in the SBP for spouse coverage effective 1 June 2006, subsequent to the date he remarried.
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 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 he was not enrolled in the SBP for spouse coverage effective 1 October 2003; and
b. showing he elected to participate in the SBP for spouse coverage effective 1 June 2006.
_______ _ 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) AR20080018504
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