IN THE CASE OF:	

		BOARD DATE:	 3 December 2009 

		DOCKET NUMBER:  AR20090009481 


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 correction of his military records to terminate his participation in the Survivor Benefit Plan (SBP).

2.  The applicant states that he elected SBP while married to his second wife Linda.  They divorced in 1990 and the applicant requested to stop his SBP coverage.  He contends that he never requested to restart SBP.  He further contends that he was never informed of the requirement to tell DFAS that he did not want SBP coverage.

3.  The applicant provides copies of a DD Form 2656-2 (SBP Termination Request), a statement from his current spouse, two letters from the Defense Finance and Accounting Service (DFAS), divorce documents pertaining to his previous wives, and his certificate of marriage to his current wife in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 17 October 1967, the applicant enlisted in the Regular Army.  He served through a series of enlistments until his retirement for length of service on 31 October 1987.  He had attained the rank of staff sergeant, pay grade E-6, and had completed 20 years and 15 days of creditable active duty service.

3.  A DA Form 4240 (Data for Payment of Retired Army Personnel), dated 23 September 1987, indicates that the applicant was then married to Linda.  The applicant elected to participate in SBP for spouse-only coverage based on the full amount of his retired pay.

4.  On 27 January 1992, the applicant was divorced from Linda.  He then married Gudrun, whom he divorced on 28 September 1995.

5.  On 16 March 1996, the applicant married Evelyn.  The applicant divorced her on 30 August 2001.  He then married his current wife, Sandra, on 23 November 2001.

6.  DFAS records show that when the applicant divorced Gudrun he provided DFAS a copy of the divorce decree.  DFAS stopped collecting SBP premiums.  DFAS was not notified when the applicant married Evelyn.  DFAS also was not notified when the applicant divorced Evelyn, or when he married Sandra.  The applicant did not elect to decline SBP coverage within a year of marriage to Gudrun, Evelyn, or Sandra.  Automatic full coverage resulted for all three spouses.

7.  On 11 March 2009, the applicant submitted a DD Form 2656-2 requesting to terminate SBP coverage.  The applicant's current spouse, Sandra, concurred and signed the form.  On 31 December 2008, and again on 8 January 2009, DFAS sent the applicant a form letter informing him that his request to terminate SBP could not be processed because he had not made the request within 1 year of his marriage to Sandra.

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.

9.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act, dated 8 September 1982, established SBP coverage for former spouses of retiring members.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members.

10.  Public Law 99-145, enacted 8 November 1995, 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 the first anniversary of the remarriage).  Changes must be made prior to the first anniversary of the 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he never requested to restart SBP and therefore his coverage should be terminated.

2.  The evidence of record shows that the applicant failed to notify DFAS of his divorce from Evelyn and subsequent marriage to Sandra.  Furthermore, he failed to make an election to terminate his participation in SBP within 1 year of his remarriage to either Evelyn or Sandra.  As a result, when DFAS learned of the applicant's divorces and remarriages, SBP was automatically restarted in accordance with law.

3.  The applicant claims that he was not informed of the requirement to elect a termination of SBP within 1 year of his remarriage.  Even so, he still bears a certain amount of responsibility for insuring that his DFAS records are correct.  The applicant's eventual notification to DFAS of his divorces from Linda and Gudrun show that he understood a need to keep DFAS informed.

4.  It is possible that the applicant had thought his notification to DFAS of his divorces from Linda and Gudrun served as a notice to terminate SBP coverage.  Therefore, as a matter of equity, the applicant should receive a certain amount of relief.

5.  Had the applicant died at any time during his marriage to Gudrun or Evelyn, they would have received an SBP benefit based on the applicant's election for spouse-only coverage.  Therefore, it would be inappropriate to grant any relief of premiums due for these marriages.

6.  However, the applicant's records should be corrected to show that he requested to terminate SBP for spouse coverage within 1 year of his marriage to his current spouse Sandra.

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 he elected to irrevocably terminate spousal coverage under SBP within 1 year of his marriage to Sandra; and
   
	b.  auditing his retired pay records and making changes in accordance with this correction of records.



      ___________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)                                         AR20090009481



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ABCMR Record of Proceedings (cont)                                         AR20090009481



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