IN THE CASE OF:	  

		BOARD DATE:	  30 September 2010

		DOCKET NUMBER:  AR20090021899 


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 enrollment in the Survivor Benefit Plan (SBP) was suspended due to his divorce.

2.  The applicant states the following:

* he was divorced on 13 October 1995
* his retirement date was 1 May 1998
* he did not have a spouse at the time of his retirement
* he thought his children would be the beneficiaries since he had no spouse

3.  The applicant provides the following documents in support of his application:

* divorce decree
* self-authored statement
* retiree account statement

CONSIDERATION OF EVIDENCE:

1.  The applicant was married on an unknown date.  After having prior active and inactive service, the applicant enlisted in the Regular Army on 29 March 1985.

2.  The applicant divorced on 13 October 1995.  The divorce decree does not mention SBP.  He and his wife had two children who were 10 and 6 years old at the time of their divorce.

3.  His service record contains pages 3 and 4 of a DD Form 2656 (Data for Payment of Retired Personnel), dated 9 March 1998, which shows he elected SBP for child-only coverage, full base amount.  He indicated he did not have a spouse.

4.  The applicant retired on 1 May 1998 in the rank of staff sergeant.

5.  His retiree account statement shows SBP premiums for spouse coverage at the full base amount were deducted from his retired pay.

6.  The applicant provided a self-authored statement in support of his claim in which he stated the following:

* he contacted the Defense Finance and Accounting Service (DFAS) in regard to SBP coverage being deducted from his military retirement pay
* DFAS informed him to contact the Army Review Boards Agency
* he contacted the Army Review Boards Agency and was informed the process would take 12 months to correct the mistake
* he divorced in 1995 and retired on 1 May 1998
* DFAS informed him that his SBP coverage was only for spouse and minor children
* he contacted DFAS again in May 2010 and he sent a copy of his divorce decree

7.  On 13 July 2010, DFAS informed a staff member of the Army Review Boards Agency of the following in regard to the applicant:

* applicant retired on 1 May 1998
* no DD Form 2656; automatic SBP enrollment
* received divorce decree on 2 June 2010 and divorce was effective 13 October 1995
* SBP coverage terminated and worked up a refund
* refund subject to the 6-year barring statute 
* worksheet reflecting his refund was computed for the period 2 June 2004 through 30 June 2010 in the amount of $4,252.76

8.  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.  An election, once made, was irrevocable except in certain circumstances.  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.

9.  Public Law 92-425 also provided that the term "dependent child" means a person who is unmarried; is under 18 years of age or at least 18 but under 22 years of age and pursuing a full-time course of study in a high school, college, or comparable recognized educational institution; is incapable of self-support because of a mental or physical incapacity existing before the person's 18th birthday; or is the child of a person to whom the plan applies including an adopted child, a step or foster child, or a recognized natural child who lived with that person in a regular parent-child relationship.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been carefully considered.  There is sufficient evidence on which to grant partial relief.

2.  The applicant retired on 1 May 1998.  He was not married at the time and he elected SBP coverage for child-only coverage.  That election was never properly processed.  Therefore, he was mistakenly automatically enrolled in the SBP for spouse coverage at the full base amount even though he had no spouse and clearly intended to provide child-only coverage.

3.  Records at DFAS show SBP premiums for spouse coverage have been deducted from his retired pay.

4.  Information obtained from DFAS shows his SBP coverage was terminated and the applicant was refunded SBP spouse premiums for the period 2 June 2004 through 30 June 2010 in the amount of $4,252.76.

5.  As a matter of equity, it would be appropriate to amend the applicant's records to show he notified DFAS that he had no spouse immediately after DFAS erroneously defaulted his SBP coverage to spouse only with the proper SBP coverage he intended initiated in its stead.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  showing he notified DFAS that he had no spouse immediately after DFAS erroneously defaulted his SBP coverage to spouse only and showing DFAS credited him with the proper (i.e., child only) SBP coverage he intended;
   
   b.  having DFAS audit his records and refund any excess SBP premiums due to him as a result of this correction and based on the dependency status of his children.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to suspending his enrollment in the SBP due to his divorce.



      ___________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)                                         AR20090021899



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090021899



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1