IN THE CASE OF:	  

		BOARD DATE:	  12 January 2012

		DOCKET NUMBER:  AR20110012663 


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 removal from participation in the Survivor Benefit Plan (SBP) and a refund of premiums as allowed by law.

2.  The applicant states:

* no one told him he needed to update his SBP election or that he had any choices that needed to be made with regard to the SBP when he updated his marital status in 2003 and 2005 at the Mayport Naval Station
* he updated his records in both instances well within a year of each event
* he was informed by three Defense Finance and Accounting Service (DFAS) personnel that he was eligible to discontinue SBP and receive a refund of premiums for up to 6 years
* he finds the Mayport Naval Station Personnel Division personnel and at least three DFAS representatives do not have a firm understanding of the nuances of the SBP
* he believes he did everything he was required to do by updating his status as timely as possible after each event
* The SBP is a difficult program to understand for even the trained personnel who administer it and he questions how a retiree is expected to understand the program
* he continued to pay for something he did not want following his divorce and was unaware he had the option to opt out
* he has to pay for something that neither he nor his wife want or need and questions the purpose of the one-year option restriction
* he and his spouse have more than adequate life insurance products that will ensure the survivor is well-cared for 
* he finds it to be totally illogical and irrational to force a retiree to participate in a program where the participation is allegedly voluntary, but in reality is mandatory once in
* he retired in 1997, divorced in December 2003, and remarried on 6 August 2005 and no one addressed the SBP with him at either time
* in 2011 he discovered he was not required to maintain the SBP on his former wife and his records at the time showed he had remarried in 2006 
* he was not told about substituting his present wife and had he been given proper guidance from any of the official records personnel, he would have made his decision at the appropriate time 
* DFAS has incorrectly altered his Retiree Account Statement and he has incurred a debt in excess of $5,000 for arrears for SBP payments dating back to 6 August 2005
* he has been paying SBP premiums since his retirement in July 1997
* DFAS has decided he should pay double for a program that he and his wife do not want to participate in
* DFAS has indicated that he did not inform them of his divorce

*	he questions how DFAS is distributing approximately 27 percent of his 
	military pension to his ex-wife under the Uniform Services Former 
	Spouses Protection Act if he did not inform them
*	withholding instructions from DFAS as reflected on his Retiree 
	Account Statement includes his status as "married"

3.  The applicant provides:

* self-authored statements
* a letter from his wife
* three DFAS-CL Forms 7220/148 (Retiree Account Statement) 

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 14 April 1957.  After having had prior enlisted service, on 11 March 1982 he was appointed as a warrant officer and served on active duty.  He was released from active duty on or about 9 January 1988.  He was appointed an Army National Guard warrant officer around January 1990, and he entered active duty on 2 January 1990.  He served in a variety of assignments and attained the rank/grade of chief warrant officer/W-4.

3.  On 28 August 1996, in conjunction with receipt of his 20-year letter, the applicant  enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) by completing a DD Form 1883 (Survivor Benefit Plan Election Certificate).  He placed an "X" in item 9a (annuity based on full retired pay) and 9c (Option C – immediate coverage) for his wife and two children.  His wife concurred with the election by signing her name to the form.  This form states, "IMPORTANT:  The decision you make with respect to participation in this Survivor Benefit Plan is a permanent irrevocable decision.  Please consider your decision and its effect very carefully."

4.  The applicant retired from active service on 1 August 1997.  He should have made a new election under the standard SBP at that time via a DA Form 4240 (Data for Payment of Retired Personnel) or DD Form 2656 (Data for Payment of Retired Personnel).  In the absence of a concurrence from his then spouse, the applicant's coverage would have automatically defaulted to full spouse coverage.

5.  It appears the applicant made SBP premium payments from the time of his 1997 retirement to his 2003 divorce.  

6.  DFAS confirmed the applicant informed them separately of his divorce and remarriage and that the applicant has separately been given information on the policies and procedures that must be followed regarding life-changing events.

7.  DFAS also confirmed that a copy of his divorce decree was requested and the applicant was informed of any possible refund in SBP premiums that might apply.  Upon learning of his remarriage, DFAS requested relevant documentation and he was again informed of the costs that must be collected.

8.  Coordination with DFAS confirms the applicant and his wife's request for withdrawal from the SBP has not been received at DFAS.  Further, DFAS states receipt of a withdrawal request now would be too far outside the period of eligibility.

9.  The applicant provides self-authored statements and copies of his Retiree Account Statements for 1 April 2011, 1 July 2011, and 1 August 2011.  The Retiree Account Statements show his current wife as his SBP beneficiary. 

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.

11.  Title 10, U.S. Code, Section 1448a(6) permits a person with spouse coverage who remarries to elect not to cover his post-retirement spouse, if such election is made within 1 year of remarriage.

12.  Army Echoes is an Army bulletin published and mailed to retirees periodically (generally 3-4 times a year) to keep them abreast of their rights and privileges and to inform them of developments in the Army.  A standard feature (as shown in the September – December 2005 issue) is “Remember:  You (emphasis in the original) are responsible for updating your retired pay file information at DFAS-CL (KY mailing address below) within one year of the event if you marry, remarry, have a child, are widowed or divorced and need t make or update a Survivor Benefit Plan (SBP) election.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant's requests for removal from participation in the SBP and a refund of premiums allowed by law were carefully considered.

2.  While the applicant states certain aspects of the SBP were not properly explained to him and he did not know exactly what he needed to do, he has not submitted sufficient evidence to support his contentions.  

3.  The applicant’s DD Form 1883 shows he enrolled in the RCSBP for spouse and children coverage, option C (immediate coverage), on 28 August 1996.  That election provided protection for his then wife and children until his active duty retirement the following year.  At that point, via an affirmative election or by default, the applicant had spouse coverage under the standard SBP.  When he divorced his spouse, coverage was suspended.  When he remarried, he had       1 year to elect out of the SBP for his post-retirement spouse.  Army Echoes warned him it was his responsibility to contact DFAS and inform them of his marital status change and to inquire about his SBP options at the time.  He did not do so.  Therefore, his spouse coverage resumed 1 year after his marriage.  There is no error or injustice.  The applicant is not entitled to 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)                                         AR20110012663



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ABCMR Record of Proceedings (cont)                                         AR20110012663



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