IN THE CASE OF:	  

		BOARD DATE:	  14 February 2012

		DOCKET NUMBER:  AR20110013841 


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 to terminate his participation in the Survivor Benefit Plan (SBP).

2.  He states he called the Defense Finance and Accounting Service (DFAS) Military Pay office on 14 March 2011, to inquire on SBP premiums and entitlement amounts for his current spouse.  He was informed he could elect to enroll his current spouse in the SBP by filing out the appropriate forms. 

3.  He contends after DFAS sent him the forms, he completed the application and indicated he did not want to be enrolled until he was provided information on the premium and entitlement amounts.  He returned the forms to DFAS and as a result, he was erroneously enrolled in the SBP.  On 25 April 2011, he received his Retiree Account Statement (RAS) which showed he had been enrolled in the SBP. 

4.  He further contends that he was never informed of the requirement to notify DFAS within one year of remarriage to terminate SBP coverage.  He was not given the entitlement amount until he made another phone call on 18 May 2011.  

5.  He did not provide any additional documentation. 

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.  His record contains a DD Form 2656 (Data for Payment of Retired Personnel), which was signed and dated by the applicant and a witness on 
12 June 1996.  This form indicates he was married to DLS on 21 December 1993 and he had four dependent children.  Item 26 (Beneficiary Categories) (X only one item) (This election is irrevocable)) shows he chose SBP coverage for spouse and children.  

3.  Item 27 (Level of Coverage) of the same form shows he elected coverage based on full gross pay without supplemental SBP.  

4.  On 30 June 1996, he retired in the rank and pay grade of lieutenant colonel/O-5 after completing over 22 years and 22 days of active duty service. 

5.  There is no record of his divorce from DLS.

6.  Staff members of the ABCMR and the DFAS, External Communications, Retired and Annuity Pay office corresponded via email on 12 January 2012.  This transmission shows the Retired and Annuity Pay office received a copy of his marriage certificate for a different spouse (MS) at the end of February 2011.  This document indicated he was remarried to MS on 23 June 2007.  This office also stated, in effect, they have not received a DD Form 2656-2 (SBP Termination Request) or a notarized spousal consent from the applicant.  

7.  The staff member of the DFAS office also stated they were required by law to add his new spouse as a beneficiary to his SBP election.  After doing so, a debt was established for SBP premium costs dating back to the first anniversary of the remarriage to MS.  The applicant contacted the DFAS office on 5 May 2011 requesting termination of all SBP actions, which their office was not able to do, so he was given his options going forward.  



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.

9.  Public Law 99-145, enacted 8 November 1995, 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 the first anniversary of the remarriage).  Changes must be made prior to the first anniversary of the 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.  

10.  Department of Defense Financial Management Regulation, Volume 7B, chapter 43, section 430601, dated December 2010 states a member who acquires a new spouse after retirement must make an election within 1 year of the marriage.  A member who is participating with spouse coverage and who does not have an eligible spouse beneficiary may, upon remarriage:  resume coverage, increase the level of coverage up to and including full retired pay, or elect not to have spouse coverage resumed.  Unless a member elects not to cover the new spouse within 1 year after the marriage, spouse coverage automatically resumes at the first anniversary of the marriage.  

11.  Retiree Account Statements are sent by DFAS to retirees each time there is a change in the retiree's retirement pay.  This normally happens at least once a year to reflect the cost of living increase awarded to retirees.  This statement shows whether or not SBP premiums are being deducted from a retiree's retirement pay and shows the current amount of SBP coverage.

12.  Army Echoes is an Army Bulletin for the Army Retiree published three times a year and mailed to Army retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army.  These Bulletins consistently contain a reminder to retirees that they are responsible for updating their accounts within 1 year of marriage, remarriage, divorce or upon the death of a spouse; and that they may need to make or update a SBP election.  Periodically, these Bulletins contain articles explaining the SBP and the importance of keeping accounts up to date.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he never requested to restart SBP for his current spouse and therefore his coverage should be terminated.

2.  The available evidence shows he remarried in June 2007; however, he did not notify the DFAS office of this change until February 2011, nearly 4 years after the fact.  As a result, he did not meet the requirement to make an election to terminate coverage within 1 year of his remarriage to MS.  

3.  He claimed he was not informed of the requirement to elect a termination of SBP within 1 year of his remarriage.  Even so, he still bears a certain amount of responsibility for ensuring that his retired pay records are up to date and correct.  

4.  The applicant would have received at least one Retiree Account Statement within the 1-year period after his new marriage.  This statement would have shown no SBP premiums being deducted from his retired pay.

5.  Issues of Army Echoes consistently contain a reminder to retirees that they are responsible for updating their accounts within one year of marriage, remarriage, divorce or upon the death of a spouse that they may need to make or update an SBP election.  Based on his date of marriage, the applicant would have received at least three issues of Army Echoes within the 1-year period after his remarriage.

6.  By law, DFAS was required to add his new spouse as the SBP beneficiary effective 1 year from the date of remarriage and to establish a debt to collect all premiums due.  

7.  As a result, there is no basis at this time 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)                                         AR20110013841





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ABCMR Record of Proceedings (cont)                                         AR20110013841



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