IN THE CASE OF: 

		BOARD DATE:	    6 February 2014

		DOCKET NUMBER:  AR20130004968 


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 that his Survivor Benefit Plan (SBP) coverage be terminated.

2.  The applicant states he is unable to afford continuing SBP premiums at a cost in excess of $200.00 per month for his new wife.  

3.  The applicant provides: 

* a self-authored statement
* 20-year letter
* a death certificate
* a birth certificate
* a letter from the Defense Finance and Accounting Service (DFAS) with SBP payment information
* a DD Form 2656-6 (Survivor Benefit Plan Election Change Certificate)
* a DD Form 2894 (Designation of Beneficiary Information)
* three Retiree Account Statements (RAS)
* two letters 
* a General Processing SBP/Reserve Component SBP (RCSBP) Master Worksheet

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 1 March 1942.  

3.  On 29 September 1992, he received a 20-year letter from the U.S. Army Reserve Personnel Center, informing him of his eligibility for retired pay at age 60.  DFAS indicates he elected spouse and children around this time.  He was transferred to the Retired Reserve on 16 February 1998.  On 1 March 2002, he attained age 60.  

4.  He submitted:

	a.  a County of Contra Costa, Martinez, CA, Certificate of Death, which shows his wife, C.J.G. died on 3 June 2006;

	b.  a County of Contra Costa, Martinez, CA, License and Certificate of Marriage, which shows he married S.L.G. on 18 April 2008;

	c.  a letter, Subject:  SBP Election Certificate, dated November 2012, to whom it may concern, wherein he indicated:

* his first wife, C.J.G. was deceased as of 3 June 2006
* it appears he failed to notify DFAS (however, DFAS indicated they had been notified)
* he has since remarried and would like to continue his benefit plan for his current spouse
* DFAS continued to collect payments all this time (however, DFAS indicated they had not been collecting spouse premiums but had been erroneously collecting child premiums)

	d.  a DD Form 2656, undated by the applicant, which shows;

* he indicated his current coverage was spouse and child
* he was requesting a change in coverage based on remarriage and death of spouse
* he elected spouse only coverage based on his full retired pay
* the notary statement is dated 1 November 2012

	e.  a DD Form 2894, dated 1 November 2012, wherein he designated his current wife, S.L.G. as his beneficiary;

	f.  a RAS, dated 1 October 2012, which shows:

* SBP coverage type "child(ren) only"
* SBP cost for child is .00
* the monthly Reserve Component SBP (RCSBP) cost was $11.15
* his beneficiary on record was C.G.

	g.  a letter from Retired and Annuity Pay, DFAS, dated 15 January 2013, that explained to the applicant an adjustment was being made in the SBP portion of his retired pay accounted based on documentation received from him, which stated:

		(1)  the adjustment was from no beneficiary coverage to spouse coverage with an effective date of 13 April 2008 (the date he married S.L.G.); resulting in his SBP cost being changed to $100.94, effective 1 February 2013; 

		(2)  since this was a retroactive change, the applicant had been undercharged for SBP and incurred a $3,521.87 debt; and

		(3)  if payment is not made in full or another repayment plan is not made within 30 days of receipt of this letter, deductions would be taken out of his monthly retirement pay to cover the debt, effective 1 February 2013.

  	h.  General Processing - SBP/RCSBP Master Worksheet, dated 15 January 2013, shows:

		(1)  he incurred no SBP cost from 1 December 2006 to 1 April 2009;

		(2)  he incurred spousal coverage beginning 1 May 2009;

		(3)  he was undercharged (spouse costs due) and incurred a debt of $3,827.42;

		(4)  he was overcharged (child costs erroneously collected) $305.55; 

		(5)  his debt balance to DFAS was $3,521.87; and 
		
		(6)  wherein he highlighted divorced prior to retirement, child charged off. No benefits until new spouse eligible 1 May 2009.  However, he indicated this was incorrect, his first wife died.

	i.  a letter to whom it may concern, dated 22 February 2013, wherein he reiterates:

		(1)  that when he signed-up for SBP his first wife was not included in his coverage; and

		(2)  he cannot afford the $215.00 SBP premium to be deducted from his retirement check.

	j.  two RAS, dated 24 January and 21 February 2013.  The RAS, dated 1 April 2013 shows his:

* SBP monthly deduction was $131.55
* SBP debt balance was $3,292.51

5.  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.  Changes in SBP options are not authorized except in specific instances as authorized by law.

6.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay.  Once a member elects either Options B or C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP – it automatically rolls into SBP coverage.  If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection had the member died prior to age 60.

7.  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.  The spouse’s concurrence is required.  No premiums will be refunded to those who opt to disenroll.  Reservists who elected an option under the RCSBP may continue to have the Reservist Portion cost deducted from their retired pay.  This information was highly publicized in Army Echoes, an Army bulletin published and provided to retirees on a regular basis.

8.  Public Law 105-261, enacted 17 October 1998, established paid-up coverage under the SBP.  Effective 1 October 2008, no reduction may be made in the retired pay of a participant in the SBP for any month after the later of:  (1) the 360th month for which the participant’s retired pay is reduced; or (2) the month during which the participant attains age 70.

9.  Title 10, U.S. Code, section 1448(a)(6) (Election Out of Plan by Person with Spouse Coverage Who Remarries), applies specifically to service members with existing SBP spouse coverage who later remarry.  The statute requires them to affirmatively opt out of spouse coverage within 1 year of the remarriage if they no longer desire it.  If such a service member does not opt out in writing, resumption of SBP spouse coverage will automatically begin after the first year of the remarriage is completed.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows that the applicant had elected spouse and children RCSBP coverage around 1992.  His spouse costs should have, and did, stop when his first spouse died.  Those costs should have been reinstated on the first anniversary of his remarriage; however, the applicant did not notify he had remarried until November 2012.

2.  However, his failure to notify DFAS of his remarriage until 2012 does not nullify his obligation to pay his SBP premiums from the date of remarriage to the date he notified DFAS of his election for full SBP coverage.  The “excessive” SBP costs will be deducted only until his back SBP premiums are paid up.

3.  Regrettably, in view of the above the applicant’s request should not be granted.  

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)                                         AR20130004968



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ABCMR Record of Proceedings (cont)                                         AR20130004968



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