IN THE CASE OF:
BOARD DATE: 10 November 2010
DOCKET NUMBER: AR20100012197
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 elected not to participate in the Survivor Benefit Plan (SBP).
2. The applicant states he was not married when he turned age 60 and applied for retired pay. He had no qualifying dependents at the time and has not had any since retiring. He contends that because no spouse was listed on his application for retired pay, the Defense Finance and Accounting Service (DFAS) automatically enrolled him in SBP with spouse-only coverage.
3. The applicant provides copies of his divorce decree and agreement of dissolution, dated 8 July 1997; DFAS letter, dated 5 March 2009; and Retiree Account Statement.
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 29 August 1988, the Tennessee Army National Guard notified the applicant of his eligibility for retired pay at age 60 (20-year letter). There is no evidence showing he made a Reserve Component SBP election at this time.
3. On 2 January 1994, the applicant was married.
4. Orders 152-24, 125th U.S. Army Reserve Command, dated 1 June 1995, transferred the applicant to the Retired Reserve due to attaining the maximum years of years.
5. On 8 July 1997, the applicant was divorced. Neither the divorce decree nor the dissolution agreement discusses SBP.
6. On 6 December 2005, the applicant attained 60 years of age.
7. His Retiree Account Statement ,effective 2 December 2008, indicates he is paying SBP premiums for spouse-only coverage.
8. On 5 March 2009, DFAS informed the applicant by letter that he had been automatically enrolled in SBP for spouse-only coverage at the full base amount because he had not made an election to decline.
9. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his records should be corrected to show he elected not to participate in the SBP.
2. The available evidence clearly shows he was not married at the time of his retirement.
3. DFAS informed the applicant in March 2009 that he had been automatically enrolled in SBP for spouse-only coverage because he had not indicated on his application for retired pay that he wanted to decline coverage.
4. The applicant's retiree account statement shows a deduction for SBP premiums for spouse-only coverage.
5. In view of the above and as a matter of equity it is appropriate to grant the requested relief.
BOARD VOTE:
__X____ __X_____ ___X____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined the evidence presented is 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 was unmarried at the time of his retirement and had made a timely election not to participate in SBP and
b. refunding to him all SBP premiums deducted from his retired pay.
__________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) AR20100012197
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20100012197
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2015 | 20150003158
The applicant requests the records of her deceased former husband, a former service member (FSM), be corrected to show he elected former spouse Survivor Benefit Plan (SBP) coverage. Her former spouse's SBP election was then changed from spouse coverage to former spouse coverage. On 16 December 2014, by letter, DFAS informed the applicant that after a review of the FSM's pay records, it was determined that the wording in the divorce decree was insufficient to establish that the court...
ARMY | BCMR | CY2011 | 20110017562
The applicant states: * she and the FSM gave the best years of their lives to the Army * the only reason she divorced the FSM is because of what Operation Desert Storm did to him; he came back a different man * their divorce decree clearly stipulated that she was to be the beneficiary under the SBP at the FSM's expense * the FSM paid SBP premiums from his retired pay each and every month * in spite of their divorce, she and the FSM spoke at least once a week * when the FSM knew he was dying...
ARMY | BCMR | CY2012 | 20120022434
The applicant provided a Certificate of Death showing the FSM died on 20 December 2009 and was married to her at the time. A DFAS, Retired and Annuity Pay, letter dated 31 January 2013 addressed to the FSM's former spouse, stated that with regard to her recent correspondence to DFAS regarding the retired pay account of the FSM and SBP coverage, the following was provided: (1) Former spouse SBP coverage is not automatically granted based on being awarded in a divorce decree; a formal request...
ARMY | BCMR | CY2010 | 20100000357
The SBP Coverage section of the document shows the spouse's date of birth as 27 January 1957. The SBP Coverage section of the document shows the spouse's date of birth as 4 November 1961. The evidence of record shows the applicant remarried and his second spouse (C_____ A. Y____) became eligible for the spouse SBP coverage, as SBP coverage is governed by category; however, they also later divorced There is no evidence of record to show the applicant took any action to request a change to...
ARMY | BCMR | CY2008 | 20080011387
The applicant requests, in effect, that his beneficiary for Survivor Benefit Plan (SBP) coverage be changed from his spouse to his former spouse and that premiums for this SBP coverage be deducted from his former spouse's entitlement to his retired pay. The evidence of record shows the applicant divorced his spouse of 23 years on 29 June 2005. The applicant has requested a change in beneficiary for SBP coverage of from spouse to former spouse to comply with his agreement with his former...
ARMY | BCMR | CY2009 | 20090021899
IN THE CASE OF: BOARD DATE: 30 September 2010 DOCKET NUMBER: AR20090021899 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. The applicant retired on 1 May 1998. He was not married at the time and he elected SBP coverage for child-only coverage.
ARMY | BCMR | CY2012 | 20120007559
On 28 April 2011, by letter to DFAS, the applicant stated: * She had enclosed the necessary documentation DFAS requested regarding the FSM's death * She had been informed the last retirement payment would be made via direct deposit, and further payments would be terminated due to the FSM's death * She understood she was not entitled to compensation regarding his retirement pay because she was not his dependent * She was designated as his natural insurable interest SBP beneficiary on his DD...
ARMY | BCMR | CY2006 | 20060014711C071108
The applicant requests, in effect, that the records of her deceased former spouse, a former service member (FSM), be corrected to show that he timely elected to change his category of participation in the Survivor Benefit Plan (SBP) from spouse to former spouse coverage. The applicant provides documentation that shows, in pertinent part, she was married to the FSM for most of his military career, the marriage lasted for nearly 42 years, and she was to be designated as the beneficiary of...
ARMY | BCMR | CY2001 | 2001064630C070421
The applicant requests correction of military records as stated in the application to the Board and as restated herein. Divorce activity did not result in divorce, they were married at the time of his death, and the death certificate has been corrected. The Board notes that a search of vital records failed to reveal a divorce action between the FSM and the applicant and, based upon that search, the FSM’s death certificate was amended to reflect his marital status as married to the applicant.
ARMY | BCMR | CY2009 | 20090003460
Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the members agreement) in those cases where the member was participating in the SBP or was still on active duty and had not yet made an SBP election. The evidence of record confirms the FSM initially elected SBP coverage for spouse and children at the time of his retirement. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected...