IN THE CASE OF:	  

		BOARD DATE:	  7 October 2010

		DOCKET NUMBER:  AR20100007403 


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 records to show he declined Survivor Benefit Plan (SBP) coverage for his current spouse and that any premiums he paid be refunded.  He also requests the beneficiaries for his unpaid military pay be changed.

2.  The applicant states:

* When he retired he was married to his former spouse and they divorced in January 2007
* When he remarried in September 2007, he sent documentation to decline SBP
* He believes this information is on record because no premiums were taken out of his retired pay until January 2010
* He has noticed that he now owes $1,700.00 in debt for this clerical error
* He submitted paperwork for the "secondary beneficiaries" prior to the birth of his fourth child and his name was later changed from the name he listed on the election form
* He has recently had his beneficiary's name changed on his retired pay election, which is probably what triggered the SBP election






3.  The applicant provides the following:

* An SBP Questionnaire
* An SBP Affidavit
* A Certificate of Live Birth

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army National Guard (ARNG) on 30 December 1983.

2.  He was a member of the ARNG on 15 January 2004 when he was issued his Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter).

3.  On 2 February 2004, the applicant's spouse (at that time) was notified of his eligibility to retire from the military service to be effective when he reached age 60 on 3 August 2023.  She was informed that he may elect any of the listed options and that the decision he made regarding his RCSBP was irrevocable.  She was also told that, by law, he may not elect certain options unless she agreed to the choice in writing.  

4.  The applicant's spouse acknowledged receipt of the notification on 19 April 2004.  Along with the acknowledgement, the applicant submitted a DD Form 2656-5 (Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate) electing Option C (Immediate Annuity), Spouse Only coverage at the full retired pay amount.

5.  He retired on 31 December 2005.

6.  The applicant and his spouse divorced on 17 January 2007.  

7.  A review of the records contained in the Human Resources Command Integrated Web Services reveals a DD Form 2656-6 (Survivor Benefit Plan Election Change Certificate) changing his RCSBP election from Spouse Only coverage to Children Only coverage at the full retired pay amount.  The certificate is dated 1 February 2007.

8.  The applicant married his current spouse on 22 September 2007.




9.  A review of the available record does not show that the applicant and his spouse submitted any election certificates or other documents electing to decline participation in the RCSBP.  However, email obtained from the Defense Finance and Accounting Services (DFAS) reveals that on 29 September 2009 officials at DFAS received his marriage certificate to his current spouse and a DD Form 2656-6, dated 10 April 2009 electing Option C, Spouse Only coverage at the full retired pay amount.  The email also states that on 8 December 2009, the customer service department at DFAS received a call from the applicant contending that he had sent a request to stop SBP coverage in September 2009. According to DFAS officials, there is nothing in their files to indicate that the applicant wanted to decline SBP coverage for his new spouse.

10.  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.

11.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member's 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member's retired pay (costs for option C being the more expensive).  Once a member elects either options B or C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP, and RCSBP coverage automatically rolls into SBP coverage.

12.  Public Law 94-496, enacted 14 October 1976 (but effective 1 October 1976), provided for the suspension of spouse costs if marriage ends in death or divorce.

13.  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.  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.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.

2.  It appears, based on the available evidence, the applicant notified DFAS of his divorce from his former spouse in 2007 and his premiums were suspended.  He submitted a DD Form 2656-6 dated 1 February 2007 requesting to change his election from Spouse Only to Children.  However, he could not make that election because once a member elects either options B or C in any category of coverage, that election is irrevocable.

3.  According to officials at DFAS his certificate of marriage to his current wife and the DD Form 2656-6 dated 10 April 2009 were not received in that agency until 29 September 2009, which is over the 1-year anniversary date of his remarriage. 

4.  In accordance with Public Law 99-145, enacted 8 November 1985, 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.  Once he notified DFAS of his remarriage, the SBP premiums resumed and his election defaulted to Spouse Only coverage.  This means his current spouse is eligible to receive his SBP annuity because SBP elections are by category and not by name.

5.  In regard to the applicant's request for the Board to change the beneficiaries for his unpaid military pay, from the information in his application to this Board it appears this issue has already been resolved.

6.  There is appears to be no error or injustice in the action taken by the Army in this case and, in view of the foregoing, there is no basis for granting the applicant's request.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   _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)                                         AR20100007403



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)