IN THE CASE OF:
BOARD DATE: 11 October 2012
DOCKET NUMBER: AR20120004360
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, his military records be corrected to show he terminated his Survivor Benefit Plan (SBP) participation for spouse coverage.
2. The applicant states:
a. SBP was initiated for his first wife prior to his discharge from the Army. Upon his discharge, he divorced his first wife but the SBP continued.
b. he remarried and the SBP carried over to his second wife without consent.
c. in 2010 he provided the Defense Finance and Accounting Service (DFAS) with his marriage and divorce documentation from both wives and they removed charges from his first wife but continued charges for his second wife.
3. The applicant provides:
* Divorce decree, dated 20 February 2004
* Certificate of marriage, dated 1 October 2005
* Divorce decree, dated 13 August 2009
* DFAS audit 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 25 June 1998. He served as a chemical operations specialist.
3. He married Brandi on 21 January 2003.
4. On 3 February 2004, he retired and was placed on the Temporary Disability Retired List (TDRL) the following day.
5. Per DFAS officials, he elected SBP upon being placed on the TDRL. There is currently no eligible beneficiary under the plan.
6. He divorced Brandi on 20 February 2004.
7. He married Alma on 1 October 2005.
8. He was removed from the TDRL on 3 February 2009 and permanently retired.
9. He divorced Alma on 13 August 2009.
10. DFAS documentation, dated 23 March 2012, states:
* Per his request, an audit was completed on the applicant's SBP account
* His current balance for SBP is $1,729.38
* effective immediately the deductions for the applicant's SBP costs are no longer necessary and should be discontinued until further notice
11. 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.
12. 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. Evidence shows the applicant enrolled in the SBP for spouse coverage in 2004.
2. In March 2012, per his request for an audit of his SBP account, DFAS discontinued his SBP deductions and determined he owed $1,729.38 at that time.
3. His second spouse automatically became the SBP beneficiary upon the first anniversary of their marriage unless he took steps to not resume spouse coverage. It appears he may not have informed DFAS about his second marriage and divorce until 5 years after he married his second spouse and one year after they divorced. When DFAS received the paperwork, they properly collected SBP premiums for the period of time his second spouse was an eligible beneficiary.
4. It appears his SBP deductions were stopped in March 2012. It does not appear his SBP has been terminated. If he should marry again and not desire his new wife to be covered by the SBP, he must notify DFAS before the first anniversary of the marriage.
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) AR20120004360
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ABCMR Record of Proceedings (cont) AR20120004360
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