IN THE CASE OF:	  

		BOARD DATE:	  1 May 2014

		DOCKET NUMBER:  AR20130014175 


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, termination of his participation in the Survivor Benefit Plan (SBP).  

2.  The applicant states he requested a change to his SBP coverage to include his spouse since his children were all over age.  When officials at the Defense Finance and Accounting Service (DFAS) processed his request, they backdated the premiums to 6 March 2006 which resulted in a debt in the amount $5,331.59. He was never informed this would happen and if he had known, he would have never applied for this change.  He now wants to cancel all of this.  His spouse was never covered before anyway. 

3.  The applicant provides a letter from DFAS and his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service).

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born in July 1940.  He and Maureen were married on 22 October 1976.

2.  Having had prior service in the U.S. Navy, he enlisted in the Michigan Army National Guard on 25 February 1969.  He served through multiple extensions in a variety of assignments and he attained the rank/grade of sergeant first class (SFC)/E-7. 

3.  On 6 June 1980, the NGB issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified him that he had completed the required years of service and would be eligible for retired pay upon application at age 60. 

4.  On 7 August 1980, he completed a DD Form 1883 (SBP Election Certificate). He indicated he was married to Maureen and they had one child, Jennifer, born in February 1978.  He elected "spouse and children" Reserve Component SBP (RCSBP) coverage, based on the full amount, under Option C (immediate coverage). 

5.  He was separated from the ARNG and transferred to the Retired Reserve on 1 April 1988. 

6.  On 5 October 1992, he and Maureen were divorced.  His divorce decree listed two additional children, Melissa, born in August 1980, and Mark, born in October 1988.  The decree was silent with respect to the SBP. 

7.  He was placed on the Retired List in his retired rank/grade of SFC/E-7 on his 60th birthday.

8.  On 6 March 2005, he and Elizabeth were married. 

9.  On 4 February 2013, he submitted a DD Form 2656-6 (SBP Election Change Certificate) to DFAS.  He indicated that his current coverage is child only and he is now electing spouse only coverage based on the full amount.

10.  On 17 June 2013, by letter, DFAS advised him that an adjustment was made in the SBP portion of his retired pay account based on the documentation he provided.  The adjustment is from child coverage to spouse coverage effective 6 March 2006.  His SBP premium is now $90.30 and since this is a retroactive change, he had been undercharged for SBP premiums.  His debt is $5,331.59 as outlined in an attached worksheet. 

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. An election, once made, was irrevocable except in certain circumstances. 

12.  Public Law 95-397, enacted 30 September 1978, provided a way for RC members who qualified for Reserve retirement, but were not yet age 60 and 

eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60.  Three options were available:

* Option A – elect to decline enrollment and choose at age 60 whether to start SBP participation
* Option B – elect that a beneficiary receive an annuity if they die before age 60, but delay payment of it until the date of the member's 60th birthday
* Option C – elect that a beneficiary receive an annuity immediately upon their death if before age 60

13.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a 1-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.  The effective date of termination is the first day of the first calendar month following the month in which the election is received by the Secretary concerned.

14.  Public Law 99-145, enacted 8 November 1985, permitted a previously
participating retiree upon remarriage to elect not to resume spouse coverage.
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.  An election to terminate spouse coverage under this law, once made, is irrevocable.

15.  Army Echoes is the the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army.  Every issue of Army Echoes contains the reminder, “You are responsible for updating your retired pay file information at DFAS-CL (address below) within one year of the event if you marry, remarry, have a child, are widowed or divorced and need to make or update a Survivor Benefit Plan (SBP) election.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he wants his SBP participation cancelled because no one told him the change in coverage is retroactive to the date of marriage.  


2.  When the applicant received his 20-year letter, he elected spouse and child RCSBP coverage based on the full amount under Option C (immediate coverage).  That election is irrevocable except in certain situations.  Elections are by category, not by name.  

3.  When he and Maureen were divorced, the coverage did not change but the spouse premiums were suspended.  It appears he contacted DFAS so that his premiums would be lowered to reflect the fact that he only had children. 

4.  He remarried on 6 March 2005 but did not tell DFAS until February 2013.  He could have terminated his spouse SBP coverage within one year of his marriage, and he could have learned of this option had he contacted DFAS after his remarriage as reminded to do in Army Echoes.  However, when DFAS processed his request in 2013, bearing in mind that he still has an irrevocable spouse coverage election that was made in August 1980, he was appropriately charged the correct premiums backdated to the date of marriage.  

5.  Contrary to his belief or contention that his spouse was not covered, the evidence of record clearly shows she was.  His spouse Elizabeth became an eligible SBP beneficiary one year after the date of marriage.  Had he died after that date, Elizabeth would have been entitled to the SBP annuity.  

6.  The applicant does not now have the option to terminate his SBP election.  The applicant's window of opportunity to terminate his coverage has passed.  

7.  The decision to enroll or not enroll in the SBP is a personal decision made by the Soldier.  The cost of SBP coverage is determined by several factors, most importantly the type of coverage elected and the effective date of election.  In view of the foregoing evidence, he is not entitled to 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)                                         AR20130014175



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ABCMR Record of Proceedings (cont)                                         AR20130014175



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