BOARD DATE: 11 January 2011
DOCKET NUMBER: AR20100020458
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 change of his Survivor Benefit Plan (SBP) beneficiary from his brother to his spouse.
2. The applicant states he was never briefed about changing the beneficiary from his brother to his current spouse within one year of his marriage. He has been paying SBP premiums since he retired in September 2002. He retired in 31 August 2002 and he was unmarried at the time. He placed his brother as an insurable interest at the time. He just noticed that his Retiree Account Statement does not have his beneficiary information.
3. The applicant provides his:
* Retiree Account Statement
* Marriage Certificate
* Divorce Decree
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 23 August 1978 and held military occupational specialty 92G (Food Service Sergeant).
2. He provides a copy of a divorce decree that shows he and his spouse, E----, were divorced on 25 March 1998. Their divorce decree is silent regarding the SBP.
3. His DD Form 214 shows he retired on 31 August 2002 by reason of sufficient service for retirement and he was placed on the retired list in the rank/grade of sergeant first class (SFC)/E-7 on 1 September 2002.
4. There is no indication he completed a DD Form 2656 (Date for Payment of Retired Personnel) or that he elected or declined enrollment in the SBP.
5. He provides a copy of a marriage certificate that show he and his spouse,
R------, were married on 26 July 2005. However, there is no indication he notified officials at the Defense Finance and Accounting Service (DFAS) of his marriage.
6. He provides a Retiree Account Statement, dated 18 April 2009, that shows he has SBP spouse coverage at a monthly cost of $158.87. Additionally, the statement shows that he has paid 79 months toward his 360 months of SBP coverage (indicating he has been paying SBP premiums since September 2002).
7. On 26 August 2010, by email, a DFAS official indicated that there was no SBP election on file (at DFAS) for the applicant. Because there was no election on file, as required, the SBP defaulted to automatic coverage, deducting the cost as if he had a spouse. Additionally, there was nothing on file regarding his marital status.
8. 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. A person who is not married and does not have a dependent child upon becoming eligible to participate in the SBP may elect to provide an annuity to a natural person with an insurable interest in the member. Elections are made by category, not by name. An election to decline to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse (or child only coverage, if applicable) coverage)
DISCUSSION AND CONCLUSIONS:
1. The available evidence shows the applicant was divorced in March 1998. His divorce decree did not indicate he had dependent children or address any future SBP. There is no indication in the available records that he remarried between the date he was divorced in March 1998 and the date he retired in August 2002.
2. It appears that since he was still unmarried at the time he retired in August 2002, he did not make an SBP election. However, his pay records did not indicate he was unmarried at the time. Accordingly, as required by law, his SBP coverage defaulted to spouse coverage. There is no evidence in his records that shows he made an SBP election for his brother.
3. He married on 26 July 2005 but failed to notify DFAS of his remarriage. His pay records show he has paid SBP premiums based on his defaulted spouse coverage since 2002 and continues to pay premiums today. The applicant, in effect, has had spouse SBP coverage since his retirement.
4. Since the applicant was unmarried and had no children at the time he retired and since he was not obligated by his divorce decree to elect former spouse coverage, he should not have had SBP coverage (unless he specifically chose coverage for an insurable interest) and thus he should not have paid premiums from September 2002 through July 2006 (one year from the date of his remarriage).
5. In view of the foregoing, it would be appropriate to correct his records to show he elected spouse coverage within one year of his remarriage and reimbursing him of any premiums he paid from September 2002 (date he retired) to July 2006 (one year from the date of his marriage).
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:
a. showing the applicant accurately and timely completed the appropriate form electing to participate in the SBP for his new spouse's benefit, to be effective 25 July 2006;
b. showing DFAS timely received and processed the appropriate form; and
c. reimbursing any premiums already paid by the applicant from the date of retirement to the date SBP coverage began.
_________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) AR20100020458
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ABCMR Record of Proceedings (cont) AR20100020458
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