BOARD DATE:	  24 May 2011

		DOCKET NUMBER:  AR20100028852 


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 record to show he elected to discontinue participation in the Survivor Benefit Plan (SBP) and dismissal of the $10,502.66 debt established by the Defense Finance and Accounting Service (DFAS) for SBP premiums he did not pay when he remarried after he retired from military service. 

2.  He states, in effect, that after asking DFAS to add his current spouse as his SBP beneficiary, he was informed that he owed $10,502.66 in unpaid premiums dating back to 1994.

3.  He provides:

* letters from DFAS to him and his Member of Congress
* letters from him and his current spouse to his Member of Congress 
* a letter to the Army Board for Correction of Military Records (ABCMR)
* a Retiree Account Statement
* a notarized concurrence from his current spouse agreeing to discontinue participation in the SBP

CONSIDERATION OF EVIDENCE:

1.  The applicant retired on 31 July 1982 after completing 20 years and 1 day of active military service.

2.  On 16 July 1982, he signed a DA Form 4240 (Data for Payment of Retired Army Personnel) electing spouse-only SBP coverage.  The form shows he was married to R------ L-- B---- at the time.

3.  He provides an undated letter from DFAS informing him his records had been updated to reflect his current spouse's information and the effect of the change in SBP coverage from no beneficiary to spouse-only effective 27 March 2010.

4.  The letter from DFAS also shows they reviewed his records and found he was married and divorced several times.  DFAS informed him his records showed his marriages as follows:

* R------ B---- from 1965 to 1992
* S---- B---- from 1992 to 1997
* J---- B---- from 1999 to 2007 and again from 2009 to present

The record does not show how or when DFAS obtained this information regarding his marriages and divorces.

5.  DFAS informed him that because he had had multiple beneficiaries from 1992 to the present, he had been undercharged for SBP in the amount of $10,502.66.  They informed him collection on the debt would begin on 1 September 2010 and informed him of his options for applying for waiver of the debt.  

6.  On 23 July 2010, he sent a letter to DFAS stating that paying SBP coverage for his current spouse along with the monthly debt payment would create a hardship for his family.  He stated he felt he was owed a reason for why he had not been informed of his debt earlier.  

7.  His wife has provided her notarized concurrence to relinquish SBP coverage.  

8.  He provides a letter to him from DFAS, dated 29 December 2010, stating he may apply to DFAS for a waiver determination if the ABCMR does not act favorably on his request.

9.  He provides a Retiree Account Statement showing his SBP costs would increase from $100.19 to $430.03 beginning on 1 September 2010 and that his SBP debt balance was $10,502.66.    

10.  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.  

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for correction of his record to show he elected to discontinue participation in the SBP or dismissal of the $10,502.66 debt established by DFAS for SBP premiums he did not pay when he remarried after he retired from military service.

2.  It appears he notified DFAS of his first divorce, as indicated by the fact that DFAS stopped collecting SBP premiums in 1992, but did not inform DFAS when he remarried in 1992 and 1999.  It appears DFAS became aware of his previous marriages when he contacted them to add his current spouse as his SBP beneficiary.  

3.  By law, since he did not make an election not to resume spouse coverage within 1 year of his remarriages in 1992 and 1999, his coverage defaulted to the previously suspended spouse-only coverage.  It was his responsibility to inform DFAS of his wishes.  The fact that he failed to do so in no way diminishes the legitimacy of the debt he incurred.  

4.  Had he died during the marriages that began in 1992 and 1999, his spouse at the time would have been the eligible beneficiary regardless of the fact that SBP premiums were not being properly deducted from his retired pay.  DFAS would have paid her the SBP annuity less any unpaid premiums.  DFAS has correctly determined that he must now pay for that coverage.  

5.  DFAS has informed him that if the ABCMR does not act favorably on his application, he may submit a request for a waiver of his indebtedness.

6.  In view of the foregoing, there is an insufficient basis upon which to grant the requested relief.


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)                                         AR20100028852



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ABCMR Record of Proceedings (cont)                                         AR20100028852



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