IN THE CASE OF:
BOARD DATE: 6 August 2009
DOCKET NUMBER: AR20090002870
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, cancellation of his Survivor Benefit Plan (SBP) coverage.
2. The applicant states that he had selected SBP coverage for his former spouse which was terminated in 2007. However, after his new marriage, SBP coverage was automatically selected without his consent or approval.
3. The applicant provides a copy of his divorce decree and notarized statement from his spouse.
CONSIDERATION OF EVIDENCE:
1. The applicant's record shows that he enlisted in the Regular Army on 2 April 1979. He retired from the Army in the rank of master sergeant (MSG)/E8 on
30 November 2001.
2. A copy of the applicant's DD Form 2656 (Data for Payment of Retired Personnel), dated 15 June 2001, was obtained from the Defense Finance and Accounting Service (DFAS) located in Cleveland, Ohio. This form shows that in Block 26a (Beneficiary Category(ies)) he elected coverage for spouse only. In block 27 (Level of Coverage) he elected full gross pay without supplemental SBP.
3. Additionally, DFAS stated that in August 2007 the applicant notified their office of his divorce that occurred in 2003 and his subsequent marriage on
25 August 2007. DFAS stated that the applicant was refunded his SBP payments from the period of his divorce. DFAS further stated that no request for discontinuance of SBP was contained in the applicant's records and therefore, SBP was started on his new spouse one year from the date of marriage.
4. On 7 July 2009, the applicant's spouse submitted a notarized statement declining SBP. She stated that she understood that she would not be entitled to an SBP annuity if her spouse predeceases her.
5. 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. It required a 2-year waiting period for new spouse eligibility following post-retirement marriage. Public Law 94-496, enacted 14 October 1976, reduced this waiting period to 1 year following post-retirement marriage. This law also suspended the cost of SBP annuity payment if marriage ended in death or divorce.
6. Public Law 99-145, dated 8 November 1985, added a remarriage option which permitted retired members to either resume, increase, or withdraw SBP coverage. However, the change must be made prior to the first anniversary or the previously-suspended coverage resumes by default.
7. Title 10, U. S. Code, section 1448 provides general rules for election out of the SBP by a person with spouse coverage who remarries. The rule states that a person who is a participant in the Plan and is providing coverage under the Plan for a spouse (or a spouse and child) who does not have an eligible spouse beneficiary under the Plan, and who remarries, may elect not to provide coverage under the Plan for the persons spouse.
DISCUSSION AND CONCLUSIONS:
1. The applicant was required to notify DFAS, within one year of his marriage to his new spouse, of his desire to discontinue SBP coverage and premium payments. There is no evidence that this action occurred. Additionally, an official at DFAS in Cleveland said that the applicant's records do not contain such a request. As such, the applicant is not entitled by law to discontinue SBP.
2. However, since DFAS reimbursed the applicant his SBP payments in 2007 for a divorce that occurred in 2003, it appears that he was not aware of the laws and regulations governing the SBP. Additionally, the statement the applicant made in his application to the Board that SBP coverage on his new spouse was automatically started without his consent or approval also indicates that he is still unaware of the laws governing SBP; although ignorance of the law is no excuse.
3. Nevertheless, it would be in the interest of equity to show that his new spouse concurred with the applicant's election to withdraw from the SBP on 1 September 2007.
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 that the applicant requested withdrawal from the SBP, with his spouse's concurrence, on 1 September 2007 and that his request was received and processed by the appropriate office in a timely manner; and
b. refunding to him any SBP premiums already deducted from his retired pay due him as a result of the above correction.
_______ _ _X______ ___
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) AR20090002870
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ABCMR Record of Proceedings (cont) AR20090002870
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