IN THE CASE OF:
BOARD DATE: 10 July 2014
DOCKET NUMBER: AR20130017792
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 his military records be corrected to show:
a. his former spouse remarried on 16 March 1997 (before age 55);
b. his Survivor Benefit Plan (SBP) payments were suspended; and
c. his SBP premiums were refunded.
2. The applicant states:
a. his former spouse remarried on 16 March 1997.
b. he was unaware that SBP payments were to be suspended upon former spouse remarriage (if that marriage occurred prior to her reaching age 55) until he received his September to December Army Echoes newsletter for retired Soldiers.
c. he immediately called his Retirement Services Officer and requested information regarding correcting his record and getting his erroneous SBP payments refunded.
3. The applicant provides:
* Former spouse's marriage license
* Excerpt from the Army Echoes Newsletter
* Divorce decree
* DA Form 4240 (Data for Payment of Retired Army Personnel)
* Defense Finance and Accounting Service (DFAS) audit records
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 24 February 1969.
2. On 4 September 1971, he married Ruth (born on 17 February 1950) and they divorced on 1 June 1989.
3. His DA Form 4240, dated 15 July 1991, shows he elected former spouse and children coverage, full base amount.
4. He retired on 31 July 1991 in the rank of sergeant major.
5. He provides a copy of his former spouse's (Ruth's) marriage license which shows she remarried on 16 March 1997 (age 47).
6. He provides a DD Form 2656-6 (SBP Election Change Certificate), dated
5 November 2012, which shows he requested his coverage be suspended.
7. An undated letter from DFAS states:
a. an adjustment was made to the SBP portion of his retired pay account based on documentation received from him (apparently his DD Form 2656-6).
b. this adjustment is from spouse coverage to no beneficiary coverage with an effective date of 1 July 1998 and his SBP cost was changed to $0.00.
c. due to the 6-year barring statute, the effective date of the change to his SBP cost is 9 November 2006, which is 6 years from the date of the notification received by DFAS.
d. since this is a retroactive change, he was overcharged for SBP. However, the total amount must be adjusted from $11,275.40 to $6,420.25 because a portion is due to his former spouse.
8. 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. To retain annuity eligibility, a surviving spouse cannot remarry before age 55. If he or she remarries before age 55, eligibility may be regained if that remarriage is terminated by death, divorce, or annulment.
DISCUSSION AND CONCLUSIONS:
1. Evidence shows the applicant enrolled in the SBP for former spouse and children coverage in July 1991.
2. In 2012, he found out his former spouses remarriage in March 1997 (before age 55) made her ineligible for SBP benefits; therefore, he notified DFAS. As a result, his retired pay account was adjusted to reflect no beneficiary coverage effective 1 July 1998 and he was refunded some monies (his portion of the SBP premiums) for overpayment of RCSBP. However, due to the barring statute, the effective date of the change to his SBP cost is 9 November 2006, which is 6 years from the date the notification was received by DFAS.
3. Since he continued to pay SBP premiums after his former spouse remarried, it would be appropriate to correct the applicant's military records to show his SBP premiums were suspended from 1 April 1997 to 5 November 2006, that he notified DFAS in a timely manner of her remarriage, and that he be refunded any additional monies due.
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 he notified DFAS in March 1997 that his former spouse remarried on 16 March 1997;
b. showing his SBP spouse cost premiums were suspended effective 1 April 1997; and
c. paying him any additional monies due as a result of the above correction.
_______ _ _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) AR20130017792
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ABCMR Record of Proceedings (cont) AR20130017792
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