BOARD DATE:	  27 March 2014

		DOCKET NUMBER:  AR20130013763 


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, correction of his records to show he elected to participate in the Survivor Benefit Plan (SBP) for spouse coverage at the reduced amount and reimbursement of premiums collected due to being charged premiums for spouse coverage at the full amount. 

2.  The applicant states 

	a.  He retired at Fort McPherson, GA, effective 1 January 2009.  He processed out at the installation which was his last duty station.  At the time of his retirement, he was married to Ella.  They elected SBP, spouse coverage, at the reduced coverage.  Since his retirement he has incurred a monthly charge for SBP coverage at the reduced rate.

	b.  In July 2010, he and Ella were divorced and the SBP premiums were suspended.  He adds that in August 2012, he remarried and sent in his request electing SBP coverage for his new spouse at full coverage.  In October 2012, he received correspondence from the Defense Finance and Accounting Service (DFAS) informing him of an adjustment to his SBP coverage due to a discovery that at the time his retired pay account was established, it was not correctly established as his account was missing page 2 of the DD Form 2656 (Data for Payment of Retired Personnel).  He was also informed that his SBP election would be established for his new spouse as of August 2013 and at the rate of full coverage. 

	c.  He immediately made contact with DFAS and requested to have his original election and not the full coverage.  He was instructed by a DFAS employee to resubmit a second election requesting to correct his SBP election for current spouse to the reduced coverage.  As per their guidance, in November 2012 he immediately sent in the new election.  At this point no correction was made to his second request.  On 4 December 2012, he sent in a third request and still has been denied his election of reduced SBP coverage.  

	d.  In December 2012, his retired pay was debited for the past premiums owed for full coverage for his spouse (Ella) since the time of his retirement.  He has enclosed a copy of the original DFAS documents in which DFAS computed his retired pay account and his SBP election at the reduced amount.  This is the time when the injustice occurred.  At the time of his retirement, the installation transition team completed his retirement application.  In January 2009, DFAS initiated and established his account at reduced SBP coverage as per the attached documents.  If at the time DFAS did not have page two of the DD Form 2656 then how would they initiate at the reduced amount with no knowledge or necessary documentation?

	e.  He has since attempted to locate the original DD Form 2656 and requested through the DFAS records and unfortunately DFAS only has page 1 of the election.  With this to be said, he again questions as to why DFAS would have established his account at reduced cost.  He has also attempted to contact the retirement clerk at Fort McPherson, GA.  Since realignment and Joint Base mandates it is to his knowledge that the retirement records were destroyed.  He has contacted the retirement clerk at the U.S. Army Garrison, Rock Island Arsenal, IL, for assistance in locating the records and she is unable to locate his retirement records.  He requests an administrative correction to his SBP election to maintain the original requested reduced coverage for now and for his current spouse.  He also requests reimbursement of the premiums collected in error. 

3.  The applicant provides:

* Printout about the SBP
* Retired Pay Worksheet
* Summary of Retired Pay Account
* Retirement orders
* Unsigned/Archived DD Form 2656
* Correspondence to and from DFAS
* Email exchange 
* Marriage certificate (LeShanda)
* Divorce decree (Ella)
* Marriage certificate (Ella)
CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born in December 1948.  He and Ella were married on 24 May 2001. 

2.  Having had prior service, he enlisted in the U.S. Army Reserve (USAR) on 3 October 1979.  He entered active duty on 20 June 1983.  He served through multiple reenlistments in the USAR and he attained the rank/grade of sergeant major (SGM)/E-9.  

3.  On 31 January 2008, he submitted a DA Form 4187 (Personnel Action) requesting retirement effective 1 January 2009.  He elected to be processed at Fort McPherson, GA.

4.  He retired on 31 December 2008 and he was placed on the Retired List in his retired rank/grade of SGM/E-9 on 1 January 2009. 

5.  His completed, signed, and notarized DD Form 2656, which would have been completed at the time of his retirement, is not available for review with this case.  However, he provides an unsigned/archived DD Form 2656 that shows: 

* he and Ella were married on 24 May 2001
* he elected coverage for spouse
* his election was based on a reduced amount of $675.00

6.  On 7 January 2009, DFAS notified him of the establishment of his retired pay account and explained his total entitlements and deductions.  The SBP cost is shown as $16.88 and is based on a reduced amount of $675.  

7.  His February 2009 Retiree Account Statement shows SBP coverage for "spouse" only, based on a reduced amount (base amount) of $675.00 and with a premium equal to $16.88.  

8.  He and Ella were divorced on 21 July 2010.  Their divorce decree is silent with respect to the SBP.  

9.  He and LeShanda were married on 9 August 2012. 

10.  On 23 August 2012, he notified DFAS that he had married LeShanda and provided DFAS with a copy of his marriage certificate. 


11.  On 15 October 2012, DFAS notified him that an adjustment was made to his SBP premium based on the information he provided.  His new spouse would be covered on the first anniversary date, 9 August 2013.  At that time, his coverage would change from "No Beneficiary" to "Spouse" coverage with an effective date of 9 August 2013.  

12.  On 15 October 2012, DFAS notified him that an adjustment was made to his SBP.  During an audit of his account, it was determined that DFAS never received the full DD Form 2656 confirming his election of a reduced amount and spouse concurrence.  As such, the election was invalid and he should have full spouse coverage effective his retirement date of 1 January 2009.  Since this is a retroactive change of an SBP undercharge, he has a debt in the amount of $6,066.70.  

13.  On 4 December 2012, he corresponded with DFAS and indicated that he elected to continue the reduced coverage for the new spouse.  He added that he made contact with DFAS in an effort to resolve the issue but the debt was collected anyway (prorated).  He indicated his desire to continue with the reduced amount. 

14.  On 26 April 2013, by email, a DFAS official advised him that his DD Form 2656 did not include the spouse concurrence or notary signature.  This was not caught by DFAS until last year because the election was transferred over the retired pay data system automatically and did not get reviewed.  When the applicant notified DFAS of his new spouse in August 2012, they reviewed his account and found the error.  That is why he owes premiums.  

15.  Public Law 92-425, the SBP, enacted 21 September 1972, 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

16.  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.

17.  SBP spouse concurrence is required when the member is married and elects children only coverage, does not elect full spouse coverage, or declines coverage.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's completed, signed, notarized, and witnessed DD Form 2656 is not available for review with this case.  It is unknown if his spouse concurred with his election of reduced SBP amount coverage at the time.  However, it appears that when his retired pay account was established, he was charged an SBP premium based on the reduced amount.  This indicates DFAS received his election for a reduced amount. 

2.  When the applicant was divorced, he appears to have notified DFAS and his premiums were suspended.  However, when he remarried and notified DFAS of his remarriage, and upon restarting his premiums, DFAS determined his election, or at least the back page of his SBP election, which would have shown his spouse’s concurrence at the time, was not on file.  Accordingly, DFAS defaulted his coverage to full spouse coverage and made it effective on the date of his retirement.  This resulted in a debt.  

3.  It is clear that an administrative error occurred in the processing of his SBP coverage.  It is equally clear that his intent was to elect reduced coverage as evidenced by the archived SBP election form and the fact that he paid premiums based on the reduced amount in the months after he retired.  

4.  Therefore, as a matter of equity, his records should be corrected to show he elected SBP, spouse coverage, at a reduced amount of $675.00 upon his retirement in December 2008 and his spouse at the time concurred with his election. 

BOARD VOTE:

___X_____  __X______  _X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  showing the applicant made an SBP election for spouse coverage at the reduced amount of $675.00 on 31 December 2008 and his spouse properly concurred with his election; 

	b.  showing his election was received and processed by the appropriate office in a timely manner; and

	c.  auditing his retired pay record and paying the applicant any premiums collected or debt incurred, as appropriate. 



      _______ _  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)                                         AR20130013763



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ABCMR Record of Proceedings (cont)                                         AR20130013763



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