IN THE CASE OF:	  

		BOARD DATE:	  20 July 2010

		DOCKET NUMBER:  AR20100007570 


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 did not owe a debt as a result of the termination of his participation in the Survivor Benefit Plan (SBP).

2.  The applicant states the Board granted him full relief with respect to his earlier request to terminate his participation in the SBP.  However, when Defense Finance and Accounting Service (DFAS) officials audited his records, they determined he now owes a debt.  This debt is causing him a hardship and is taking a toll on his health.

3.  The applicant provides the following documents:

* a letter, dated 13 December 2009, from DFAS - Retired and Annuity Pay
* a letter, dated 7 January 2010, to DFAS, reduction of the debt
* a copy of the Board's Record of proceedings, dated 10 December 2009
* Copies of various Retiree and Account Statements

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army on 17 October 1967 and served through multiple reenlistments and held military occupational specialty 51H (Construction Engineer).  He married Linda on 12 November 1974.

2.  On 23 September 1987, in anticipation of his upcoming retirement, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel) and indicated that he was married to Linda.  He elected spouse only coverage based on the full amount.  The form states, "YOUR ELECTION IS PERMANENTLY IRREVOCABLE."

3.  He retired on 31 October 1987 in the rank/grade of staff sergeant/E-6.  He was credited with 20 years and 15 days of active service.

4.  On 27 January 1992, he divorced Linda and on 28 January 1992, he married Gurdon.

5.  On 28 September 1995, he divorced Gurdon.  He also notified DFAS and provided a copy of his divorce decree.  Accordingly, DFAS suspended the payment of his SBP premiums; however, his SBP spouse coverage remained in effect. 

6.  On 16 March 1996, he married Evelyn and on 30 August 2001, he divorced her.  

7.  On 23 November 2001, he married Sandra.  

8.  There is no indication in his records that he notified DFAS of either of the two spouses (Evelyn or Sandra) or that he elected to decline SBP coverage within one year of his marriage to either, resulting in an automatic full coverage for both. 

9.  On 11 March 2009, he requested the termination of his SBP coverage.  His spouse at the time, Sandra, concurred; however, DFAS denied him since he had not submitted his request within one year of his marriage to Sandra.

10.  On 3 December 2009, this Board granted him relief by correcting his records to show he elected to terminate his SBP coverage within one year of his marriage to Sandra (he married her on 23 November 2001).

11.  On 31 December 2009, by letter, DFAS notified the applicant that as a result of the ABCMR's directive, his records were corrected to show he terminated SBP spouse coverage effective 31 October 2001.  He was also notified of the following:

	a.  Since he paid premiums from 1 August 2008 to 31 December 2009, he would be entitled to a refund of such premiums and that his account would be credited with $1,602.54.  

	b.  However, he owed the amount of $3,788.01, the SBP cost of his previous spouse from 1 April 1997 to 31 August 2001, a cost that he never paid.
	c.  the SBP credit of $1,602.54 was applied against the SBP cost of $3,788.01 owed, which leaves him with an adjusted debt of $2,185.47.

12.  His Retiree Account statement, dated February 2010, shows collection of this debt has begun.

13.  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.

14.  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.

15.  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 his records should be corrected to show he did not owe a debt as a result of the termination of his participation in the SBP.

2.  Applicant retired from active duty on 31 October 1987.  At the time of his retirement he was married to Linda and elected full spouse coverage under the SBP.  In 1992, he divorced Linda and married Gudrun.  He divorced Gudrun in 1995 and married Evelyn in 1996.  In 2001, he divorced Evelyn and married his current spouse, Sandra.  Although he informed DFAS of his divorce from Gudrun, which resulted in the suspension of his SBP spouse coverage, he did not notify DFAS of his subsequent remarriages and divorces.  He states that he was never informed that having once elected SBP he had only one year from the date of each subsequent remarriage in which to opt-out of coverage for each post-retirement spouse. 

3.  The previous Board's decision addressed his request at the time which was to terminate his SBP.  That did not exempt him or waive any previous outstanding premiums.  In fact he bears most of the responsibility for the tangled state of his affairs at DFAS.  His failure to regularly update his records or make reasonable inquiry into benefits—whether mandatory or optional for his successive spouses-- has created the SBP debt he now seeks to alleviate.  

4.  Further, the fact remains that had he died during his marriages to either Gudrun or Evelyn, whoever was his widow would have been entitled to an SBP spouse annuity as a matter of law.  SBP coverage is by category, not by name.  Upon divorce, premiums may be suspended but coverage remains intact.

5.  In view of the foregoing, the applicant is not entitled to relief.

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)                                         AR20100007570



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ABCMR Record of Proceedings (cont)                                         AR20100007570



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