IN THE CASE OF:	

		BOARD DATE:	  20 May 2010

		DOCKET NUMBER:  AR20100013040 


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 his military records be corrected by canceling his Survivor Benefit Plan (SBP) election for spouse coverage.

2.  The applicant states:

* He nor his wife wishes to be covered by the SBP
* he assumed after being retired for 43 years and having lost his first wife the SBP no longer applied
* he is a retired lieutenant colonel (LTC) who retired in October 1967 and elected to participate in the SBP with spouse coverage
* his first wife died in 2001, he was 81 years old at the time, and he notified the personnel office shortly after her death and after making 406 SBP payments
* his SBP allotment was discontinued
* he assumed the planned coverage was terminated and he forfeited the money already paid
* he remarried on 10 September 2002
* he did not think his current wife was entitled to SBP since he was no longer making allotments nor did he ever want her to be covered
* his current wife had more than sufficient medical and insurance coverage so it never crossed his mind to ask if she was covered or entitled to be covered by the SBP plan for which he opted to cover his first wife
* earlier this year he updated his personnel records and his current marital status
* he was informed his current wife was covered by his SBP and by law he had to repay $20,582.11
* he is 90 years old and has been retired for 43 years
* his only source of income is his retired pay which is now being deducted ($1,111.60) each month for SBP coverage for his wife
* if he had known when he remarried that he would have to make a decision to accept or opt out of SBP, he would have opted out

3.  The applicant provides:

* a statement from his spouse, dated 9 April 2010
* Defense Finance and Accounting Service - Cleveland (DFAS-CL) Form 7220/148 (Retiree Account Statement)
* letter, dated 22 March 2010, from the Defense Finance and Accounting Service (DFAS) 

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 was born on 4 April 1920.  He enlisted in the Army of the United States on 11 October 1939.  He married on 5 November 1945.  On 31 October 1967, the applicant retired from the USAR in the rank of LTC.

3.  DFAS records show the applicant enrolled in the SBP on 1 January 1973 for spouse coverage.

4.  DFAS records show his spouse died in October 2001.

5.  The applicant remarried on 10 September 2002.


6.  The applicant provided a letter from DFAS, dated 22 March 2010, which states an adjustment was made in the SBP portion of his retired pay account based on a 2002 marriage certificate.  The adjustment in his coverage is from "No Beneficiary" based on the full base amount of $4,889.38 to "Spouse" based on the full base amount of $4,889.38.  A debt ($21,693.71) was placed on his account for the period from remarriage 10 September 2003 (effective date is his one year anniversary date) through 30 September 2008, when he was first eligible to become "Paid-up."

7.  In support of his claim, the applicant provided a statement, dated 9 April 2010, from his wife concurring with his request to cancel participation in the SBP.

8.  Public Law 92-425, the SBP, enacted on 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

9.  Public Law 99-145, enacted 8 November 1985, permitted a previously participating retiree upon remarriage to elect not to resume spouse coverage. The change 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.  An election to terminate spouse coverage under this law, once made, is irrevocable.

10.  Public Law 105-261, enacted 17 October 1998, established paid-up coverage under the SBP.  Effective 1 October 2008, no reduction may be made in the retired pay of a participant in the SBP for any month after the later of:

   (1)  the 360th month for which the participant’s retired pay is reduced; or

   (2)  the month during which the participant attains age 70.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant elected to participate in the SBP for spouse coverage in 1973.  He paid SBP premiums for 34 years until his first wife's death in 2001 at age 79.  He informed DFAS of his first wife's death.  He did not inform DFAS of his remarriage or his intent not to provide SBP for his new spouse within one year of his remarriage.  Therefore, as a matter of law, SBP spouse coverage vested in his new wife one year after their marriage. 

2.  The applicant did not inform DFAS until 2010 he remarried in September 2002, resulting in five years worth of SBP premiums being due (debt of $21,693.71).

3.  The applicant contends 34 years after retirement it simply never occurred to him his new post-retirement wife would be automatically covered under SBP unless he affirmatively opted out of the program.  His first wife was the wife at his side throughout his military career.  His second wife came into their marriage without the need for his financial assistance or access to his benefits.  With his first wife's death, there was no real need for him to serve as anyone's primary source of financial support.  

4.  Since the applicant's spouse recently concurred with his request to cancel participation in the SBP, it would be equitable to correct his records to show he canceled his SBP election for spouse coverage in a timely manner.

BOARD VOTE:

____X___  ____X___  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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.  showing the applicant elected not to resume spouse SBP coverage on                1 October 2002 reimbursing the applicant any SBP premiums that have been collected since that date.




      ____________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)                                         AR20100013040



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ABCMR Record of Proceedings (cont)                                         AR20100013040



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