BOARD DATE:	  11 January 2011

		DOCKET NUMBER:  AR20100023745 


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 termination of his Survivor Benefit Plan (SBP) coverage and reimbursement of all paid premiums.  

2.  The applicant states that in July 2010 he requested SBP coverage for his current spouse and he was told the monthly cost would be $140.44.  However, when he received his pay voucher, officials at the Defense Finance and Accounting Service (DFAS) established a debt for SBP cost dating back to 14 February 1998 when his spouse first became eligible at the rate of $590.24 as an additional collection.  No one explained this debt to him.  This has clearly placed him in a financial hardship and could lead to him having to refinance his home or even go into bankruptcy.  He and his spouse live on a limited income.  Had he known the actual cost beforehand, he would not have agreed to enroll his spouse.  He asks this Board to stop coverage immediately.

3.  The applicant provides the following documents:

* First spouse marriage certificates
* First spouse obituary
* Second spouse marriage certificate
* Current spouse notarized statement

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he initially entered active duty on 31 October 1966.  He married his spouse, Margaret, on 11 September 1988.
2.  He served through multiple extensions or reenlistments, in various staff and leadership positions, within and outside the continental United States, and attained the rank/grade of first sergeant (1SG)/E-8.  

3.  On 15 September 1988, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  He indicated that he was married to Margaret and he elected spouse SBP coverage based on the full amount.

4.  He was honorably retired on 31 October 1988 and was placed on the retired list in his retired rank/grade of 1SG/E-8 on 1 November 1988.  He was credited with completing more than 22 years of faithful honorable active service.

5.  On 4 March 1992, his spouse, Margaret, died and it appears his SBP premiums were suspended.  

6.  On 14 February 1997, he married his current spouse, Louise.  However, he did not notify DFAS of this remarriage and, therefore, no premiums were collected from his pay.

7.  In July 2010, he appears to have contacted DFAS regarding his current spouse's enrollment and, having previously elected spouse coverage that was suspended, premium payments resumed and a debt was established for payments that were in arrears dating back to 14 February 1998 (when his current spouse became eligible).

8.  He submitted a notarized statement, dated 14 December 2010, from his current spouse, wherein she states that she has discussed the SBP with the applicant and she, in effect, agrees to the cancellation.

9.  Public Law 92-425, the SBP, enacted 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.  The election must be made prior to the effective date of retirement or else coverage automatically defaults to spouse coverage, if applicable.

10.  Public Law 99-145, enacted 8 November 1985, 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 first anniversary of remarriage).  Changes 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.  The new spouse must be notified but has no right to non-concur.
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows, prior to his retirement on 1 November 1988, the applicant made a spouse SBP election.  His spouse died on 4 March 1992.  It appears his SBP premiums were suspended.

2.  He remarried on 14 February 1997 but failed to notify DFAS of his remarriage within one year as required by law and, therefore, he did not pay the premiums for coverage that was already in effect by virtue of his 1988 election (SBP election is by category; not by name).  

3.  Years later (July 2010), he notified DFAS of his remarriage.  Accordingly, SBP premium payments at the monthly rate of $140.44 resumed.  Additionally, the applicant incurred a debt, dating back to 14 February 1998 (the date his current spouse became eligible for SBP coverage).  The debt is currently being collected at the monthly rate of $590.24.  

4.  The collection of premiums dating back to February 1998 has clearly created a severe financial burden to the applicant and his family.  Since his current spouse is a post-retirement spouse and concurs, it would be appropriate, as a matter of equity, to show the applicant notified DFAS of his remarriage prior to his one-year anniversary and informed DFAS that he was electing not to provide SBP coverage for his new spouse.  

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 completed the appropriate form electing not to resume the SBP, for his new spouse's benefit, effective 14 February 1998; 
	b.  showing his spouse at the time was notified of his decision on 14 February 1998;

	c.  showing DFAS timely received and processed the appropriate form; and

	d.  reimbursing the applicant premiums that were already paid and canceling any debt as a result of this correction.



      _______ _   _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)                                         AR20100023745



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ABCMR Record of Proceedings (cont)                                         AR20100023745



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