BOARD DATE:	  9 November 2010

		DOCKET NUMBER:  AR20100012099 


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 he elected "children only" instead of "spouse and children" Survivor Benefit Plan (SBP) coverage at the time of his retirement in 1994 and reimbursement of all and any premium overpayment.

2.  The applicant states, in effect, he elected spouse and children coverage in error and since he was not married at the time the election should have converted to children only coverage.  The overpayment of the SBP premium was deducted from his retirement pay for 184 payments.  Upon requesting correction of the error, the Defense Finance and Accounting Service (DFAS) refunded only the last 72 months of overpaid premiums.  He wants reimbursement of the remaining 112 payments.  

3.  The applicant provides a copy of:

* his DD Form 214 (Certificate of Release or Discharge From Active Duty)
* two divorce decrees
* his DA Form 4240 (Data for Payment of Retired Army Personnel)
* his Marriage Certificate
* a DFAS decision letter


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.  The applicant's records show he was born on 16 October 1953.  He enlisted in the Regular Army on 23 August 1974 and he married his first spouse, Debra, on 29 November 1975.  He subsequently served in various staff or leadership positions and he attained the rank/grade of staff sergeant (SSG)/E-6.

3.  On 27 September 1989, he and his spouse were divorced.  The divorce decree did not address any aspect of the division of property between the parties, though the court retained jurisdiction over the matter.  At the time of their divorce, they had three children whose birth dates are 27 April 1976, 16 June 1981, and 4 September 1983.

4.  The applicant's DD Form 93 (Record of Emergency Data), dated 28 July 1994 and signed by him, lists a spouse and 3 children.  Section I (Personal Data) of his DA Form 2A (Personnel Qualification Record - Part I), dated 29 July 1994, shows he was married with 4 dependents.

5.  On 12 August 1994, in connection with his upcoming retirement, he completed a DA Form 4240.  He placed an "X" in item 14 of Part V (Survivor Benefit Plan Election) indicating he was married and an "X" in item 14a, indicating he had dependent children.  He further elected "spouse and children only" SBP coverage based on the full amount. 

6.  He authenticated the DA Form 4240 by placing his signature in the appropriate block and a Retirement Services Officer (RSO)/SBP counselor also authenticated this form by placing her signature and date in the appropriate blocks.

7.  On 31 August 1994, he was honorably retired by reason of sufficient service for retirement and on 1 September 1994, he was placed on the Retired List in his retired rank/grade of SSG/E-6.  The DD Form 214 he was issued shows he completed a total of 20 years and 8 days of total active service.  

8.  On 1 July 1996, he married his second spouse, Mattie; however, it is unclear if he notified DFAS of his remarriage.

9.  In April 2001, he and Mattie entered into a marital settlement agreement and on 1 November 2002, their marriage was dissolved.  The settlement agreement and ultimate divorce decree are both silent regarding the SBP.  Again, it is unclear if he notified DFAS of his divorce.

10.  In the DFAS decision letter, dated 28 January 2010, it states they adjusted his coverage from "spouse based on the full base amount" to "no beneficiary" with an effective date of 6 November 2002 resulting in his SBP cost to be $0.00.  It further states the effective date of the change to his SBP cost is 13 November 2003, 6 years from the date his notification was received by DFAS.

11.  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.  An election, once made, was irrevocable except in certain circumstances.  Elections are made by category, not by name.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that DFAS incorrectly processed his SBP selection as coverage for "spouse and children" instead of "children only" was carefully considered; however, there is insufficient evidence to support his contention. 

2.  The evidence of record shows at the time of the applicant's retirement, he completed an SBP election form wherein he stated he was married and had 
dependent children.  He further elected "spouse and children" SBP coverage based on the full amount.  His election entered military channels and he began SBP paying premiums based on this election.  He paid those premiums without complaint for 15 years.

3.  It is unclear if he was married or divorced at the time he made his SBP election.  On the one hand, he submits a copy of a divorce decree, dated 27 September 1989.  But on the other hand, his personnel records, including his DA Form 2A and his DD Form 93, both generated shortly before his retirement, show he was married.  He indicated so on the SBP election form and further confirms this by his argument in this application that he elected spouse and children coverage.  He repeatedly reviewed and approved paperwork indicating he was married without correcting the alleged mistake regarding a marital status supposedly terminated 5 years previously and not resumed.

4.  There is no evidence his "spouse and children" SBP coverage was made due to Government error.  As such, notwithstanding the reimbursement made by DFAS officials to the applicant which relates to a subsequent marriage and divorce, there is insufficient evidence to grant the applicant the requested relief in this case.

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)                                         AR20100012099



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ABCMR Record of Proceedings (cont)                                         AR20100012099



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