BOARD DATE:	  22 November 2011

		DOCKET NUMBER:  AR20100030101 


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 his Survivor Benefit Plan (SBP) coverage was increased to the full base amount at the time it was restarted.

2.  The applicant states, in effect:

   a.  he was given erroneous advice for filing SBP benefits;

   b.  on 1 August 2009, he married his current spouse.  On 3 August 2009, they visited the Military Retirement Service Office (RSO) at March Air Force Reserve Base in California and he was advised that he had to wait 13 months from the date he got married to do anything concerning SBP;

	c.  during subsequent visits to numerous Veterans Affairs offices he was repeatedly informed he had to wait 13 months from the date of his marriage to be eligible to apply for the SBP;

   d.  based on the information he received, on 1 August 2010, he applied to the Defense Finance and Accounting Service (DFAS) for full SBP coverage and gave authorization for his spouse to speak on his behalf due to a service incurred extreme hearing loss;

	e.  in November 2010, he was pleased to learn DFAS reenrolled him in the SBP, effective 1 August 2010; however, it was at the reduced amount (a cost of $4,535.28) and not the full base amount as he requested; and
   f.  he sought assistance from DFAS and the RSO at Fort Irwin, California to help him enroll in SBP coverage for the full base amount; however, he was told to submit a DD Form 149 to this Board.
   
3.  The applicant provides:

* Self-authored Memorandum for Record (MFR)
* DD Form 214 (Report of Separation from Active Duty)
* Self-authored Letter 
* three Retiree Account Statements
* DFAS letter, dated 12 November 2010
* MFR
* DA Form 4240 (Data for Payment of Retired Army Personnel)
* Self-authored statement
* two marriage certificates
* marriage certificate amendment
* two death certificates

CONSIDERATION OF EVIDENCE:

1.  The applicant's military record shows that after having prior service in the Regular and Reserve components, he entered active duty in the rank of second lieutenant (2LT) on 28 August 1950 and he served as an infantry officer.

2.  The applicant's record shows he was married; however, it does not reveal the date of this occurrence.

3.  His record contains a DA Form 4240 which shows he chose to participate in the SBP and elected "spouse only" coverage at the reduced amount of $1,400. He authenticated this document with his signature on 8 June 1978.

4.  On 30 June 1978, he retired from active duty in the rank of colonel (COL).  The DD Form 214 issued at that time shows he completed a total of 29 years, 9 months, and 29 days of creditable active service.

5.  On 24 June 2000, the applicant's spouse died.

6.  On April 2002, the applicant married his second spouse.  She died on 3 June 2008.

7.  On 1 August 2009, the applicant married his third spouse.

8.  The applicant provides a DFAS, Retired and Annuity Pay, letter dated 12 November 2010 which notified him an adjustment was made to the SBP portion of his retired pay from "no beneficiary" to "spouse" based on the reduced base amount of $4,535.28 with an effective date of 1 August 2010.

9.  The applicant provides a self-authored letter addressed to DFAS dated 1 August 2010, which shows:

	a.  he requested to add his wife to his SBP as the beneficiary with full benefit coverage;

	b.  he submitted his request in accordance with the information he received from the retired veterans office on 3 August 2009, to submit his request for SBP coverage 13 months following the date of his marriage; and

	c.  he provided DFAS with a copy of his current 1 August 2009 marriage license, death certificate for his second wife, and both his current wife's and his social security numbers, and dates of birth.

10.  The applicant provides a Retiree Account Statement with an effective date of 29 October 2010.  It shows he was enrolled in the SBP with spouse only coverage and the said annuity payable is fifty-five percent of his annuity base amount.  It also shows he had already paid 327 months towards his 360 months of paid up SBP coverage.

11.  During the processing of this case, a staff member of the Board contacted DFAS to ascertain the reason the applicant's SBP was not restarted at the full base amount as he requested.  On 12 October 2011, a DFAS official confirmed:

   a.  total difference between reduced and full premiums from retirement would have had to have been paid prior to his 1 year anniversary date; and
   
   b.  his date of marriage (1 August 2009) and his request and marriage certificate were not received until 4 October 2010; therefore, he was not allowed to change the amount of his SBP coverage from reduced to the full amount.

12.  On 13 October 2011, a staff member of the Board telephoned the applicant in an attempt to confirm his willingness to pay the SBP premium difference from reduced coverage to a full annuity retroactive to 30 June 1978, the date of his retirement, should his case be granted by the Board.  The applicant's spouse answered on his behalf indicating the applicant understood he might owe up to $80,000 in back premiums and would pay the difference.


13.  On 28 October 2011, the applicant provided a staff member of the Board a Memorandum for Record indicating he agreed to pay whatever the current regulations requires to provide his current spouse full SBP coverage.

14.  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.

15.  Title 10, U.S. Code, section 1448(g) provides for electing to increase SBP coverage upon remarriage.

   a.  A person who is a participant in the Plan and is providing coverage for a spouse or a spouse and child, but at less than the maximum level; and (B) who remarries, may elect, within 1 year of such remarriage, to increase the level of coverage provided under the SBP to a level not in excess of the current retired pay of that person.
   
   b.  Such an election shall be contingent on the person paying to the United States the amount determined plus interest on such amount at a rate determined under regulations prescribed by the Secretary of Defense.
   
   c.  The amount to be paid is the amount equal to the difference between the amount that would have been withheld from such person’s retired pay under section 1452 of this title if the higher level of coverage had been in effect from the time the person became a participant in the Plan; and the amount of such person’s retired pay actually withheld.
   
   d.  An election shall be made in such manner as the Secretary shall prescribe and shall become effective upon receipt of the payment required.
   
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his request to increase the amount of his "spouse only" SBP coverage from a reduced annuity to the full base amount should be granted based on the erroneous information he received from the RSO and several VA offices informing him he had to wait 13 months from the date of his marriage to apply for SBP benefits.

2.  The evidence shows the applicant submitted a request to add his current spouse to his SBP with full benefit coverage on 1 August 2010, as he claims he was instructed to do and there is no evidence of record to contradict this statement; therefore, absent evidence to the contrary, it is reasonable to accept this sequence of events as fact.  Further, the DFAS processed his request and restarted his SBP with spouse only coverage at the reduced amount.  In a recent statement, DFAS indicates the applicant's request to increase SBP coverage was received on 4 October 2010, after the 1 year anniversary of his 1 August 2009 marriage; therefore he was denied.

3.  The facts of this case show that at worst the applicant was provided incorrect information when he first contacted the RSO and other VA office officials, or at best misinterpreted the information he received to mean he could not apply for 
1 year or 13 months.  What is clear is that the applicant initially enrolled in the SBP with spouse only coverage in June 1978, paid more than 327 payments towards his 360 total SBP payments, maintained SBP coverage for two previous spouses through the dates of their deaths, intended to provide SBP coverage for his current wife, and sought to initiate this increased coverage on the first anniversary of his marriage.

4.  The fact that the applicant's application was not submitted on time due to poor or misinterpreted counseling should not result in him being denied SBP coverage at the full base amount, a benefit he was qualified to receive by law and will ultimately have to pay for retroactive to the date of his retirement.  Therefore, it would be appropriate and serve the interest of justice and equity to correct his record to show he applied for and was enrolled in the SBP with spouse coverage at the full base amount within 1 year of his 1 August 2009 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 increased the amount of his SBP spouse coverage from the reduced amount to the full base amount in a timely manner following the date of his current marriage; and 
   b.  advising the applicant DFAS will be instructed to collect any additional SBP premium costs due.



      _______ _ 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)                                         AR20100030101



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ABCMR Record of Proceedings (cont)                                         AR20100030101



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