BOARD DATE:	  9 August 2012

		DOCKET NUMBER:  AR20110019770 


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 reimbursement of premiums paid into the Survivor Benefit Plan (SBP).

2.  The applicant states he was not informed that if his spouse passed away before him the money he paid into the SBP would just be lost.  He thought the benefit would transfer to his children, but now that he knows it will not, he wants to be reimbursed all of the money that he paid into the SBP.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he had periods of enlisted service in the U.S. Air Force, U.S. Air Force Reserve, and the Regular Army.

2.  On 20 March 1978, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel) in preparation for his retirement.  Part IV (Survivor Benefit Plan Election) of this form contains the following information:

	a.  Item 13 (Are you married?) shows he indicated he was married.

	b.  Item 14 (Do you have dependent children?) shows he indicated he had dependent children.

	c.  Item 15a (Spouse only) shows he elected spouse only SBP coverage.
	d.  Item 16 shows he elected to provide an annuity based on the full amount of his retired pay.

	e.  Item 17 (Name of Spouse and Date of Birth) shows his wife's name as
"B-----y A__ L-------r" and her date of birth as 20 November 1948; he did not list the names of any dependent children.

	f.  Item 23 (Signature of Member) shows he authenticated this form with his signature.

	g.  Items 24 (Signature of Witness) and 25 (Address of Witness) show his execution of this form was witnessed by a representative of the Military Personnel Branch of Walter Reed Army Medical Center, Washington, DC.

3.  His DD Form 214 (Report of Separation from Active Duty) shows he was retired on 31 March 1978 by reason of sufficient service for retirement.  He was placed on the retired list 1 April 1978.  He completed 20 years and 1 day of total active service.

4.  On 5 January 2012, the Deputy Director, Operations, Defense Finance and Accounting Service (DFAS), Indianapolis, IN, forwarded an inquiry from a Congressman on the applicant's behalf along with a copy of a letter they had sent to the Congressman.  The Deputy Director provided the following:

	a.  The applicant retired on 1 April 1978 and had elected to participate in the SBP with spouse only coverage at the time of his retirement.

	b.  The applicant's SBP account reached a "paid-up" status and his SBP premiums were stopped on 1 October 2008.

	c.  DFAS records indicated his spouse died on 3 December 2009.  As a result, his SBP account was updated to reflect "no beneficiary."

	d.  DFAS records show he had an eligible "spouse" beneficiary for the entire period he paid into the SBP; therefore, neither he nor his children are entitled to a refund of the SBP premiums.  In the event the applicant had died before his spouse, she would have been an eligible beneficiary for the SBP annuity.

	e.  If the applicant remarries, he will have the following options.  In accordance with Title 10, U.S. Code, section 1448(a)(6)(c), a member who is participating in the SBP, but who does not have an eligible spouse, may, upon remarriage, elect to not resume coverage, elect to resume coverage at the previous level, or to increase the coverage.  The retiree must exercise one of the three options within the first year of remarriage.  The new spouse would become an eligible beneficiary upon the first anniversary of the marriage and premiums would start at that time.  The new spouse automatically becomes the beneficiary upon the one year anniversary date if the retiree fails to make an election (one of the above three options) within 1 year.

5.  The applicant's DFAS-CL 7220 (Retiree Account Statement), effective 1 December 2010, shows he had SBP spouse only coverage with an annuity base amount of $1,406.60 payable at a rate of 55 percent ($773.63).  The form contains the entry "There is no charge for coverage because you are paid up."  This form shows the current annuitant at the time was his wife whose name appears as "L--a D--n L-------r" and her date of birth as 16 October 1957.

6.  His record is void of any documentation showing when he was divorced from his first wife or when he married his apparent second wife.

7.  Public Law 92-425, the Survivor Benefit Plan, 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 family members.

8.  Title 10, U.S. Code, section 1448, provides that if a person makes an election not to participate in the SBP, the person's spouse shall be notified of that election.  Spousal concurrence is needed only when a married person elects to provide an annuity for his spouse at less than the maximum level or to provide an annuity for a dependent child but not for his spouse.

9.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from SBP.  Members retired for more than two years as of 17 May 1998 were authorized a one-year opportunity (17 May 1998 through 16 May 1999) to disenroll.  The spouse’s concurrence is required.  No premiums will be refunded to those who opt to disenroll.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be reimbursed the money he paid in SBP premiums due to the fact that his wife preceded him in death was carefully considered and determined to lack merit.

2.  Records show that on 20 March 1978, although he had both a wife and dependent children, the applicant elected to participate in the SBP with full spouse only coverage.  He retired on 31 March 1978 and paid SBP premiums until his account reached a "paid up" status on 1 October 2008.

3.  SBP elections are made by category and records show the applicant had a spouse listed as an eligible SBP beneficiary the entire time he was paying SBP premiums.  In the event he had died prior to his spouse, she would have been paid SBP annuities.

4.  SBP is an insurance program that pays eligible beneficiaries an annuity.  Like any insurance program, payment of premiums does not guarantee payment of a benefit unless the beneficiary qualifies under the rules of the program.

5.  Based on the evidence of record, there does not appear to be an administrative error on the part of the government in this case.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20110019770



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ABCMR Record of Proceedings (cont)                                         AR20110019770



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