BOARD DATE:	  21 April 2015

		DOCKET NUMBER:  AR20140011948


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, through a member of congress, in effect, correction of his record to show:

* he elected not to resume Survivor Benefit Plan (SBP) coverage for his current spouse in conjunction with remarriage
* recoupment of premiums paid

2.  The applicant states that repayment of the debt for SBP coverage at this late date would cause him and his spouse a significant financial hardship.

3.  The applicant provides:

* Member of Congress Letter
* Privacy Act Statement
* Letter of Support
* Defense Finance and Accounting Service (DFAS) Letter

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that on 31 December 1977, he retired from active duty in the rank of lieutenant colonel (LTC) after completing a total of 26 years, 7 months, and 12 days of creditable active service and 2 months and
5 days of inactive service.  His official military personnel file contains a DD Form 

4240 (Data for Payment of Retired Army Personnel) that shows he elected to participate in the SBP for spouse only coverage at the full base amount on 
7 December 1977.

2.  On 12 May 2014, Deputy Director, Operations, DFAS, provided:

   a.  The applicant elected to participate in the SBP with spouse coverage effective January 1978.  However due the death of his first souse in 1987, his account status was listed as no beneficiary.  At that time, he did not have an eligible SBP beneficiary.
   
   b.  Upon LTC Peterson's remarriage to Mrs. Y_____C. _______ on 25 March 1989, he had the options to elect to not resume coverage, resume coverage at the previous level, or to increase coverage within the first year of remarriage.  The new spouse would become an eligible beneficiary upon the first anniversary of the marriage and premiums would start at that time.  The new spouse automatically becomes an eligible beneficiary upon the one year anniversary date if the retiree fails to make an election within one year.
   
   c.  On 31 January 2014, they received correspondence from LTC Peterson that included a copy of his marriage certificate; therefore, they updated his account accordingly to reflect his current SBP beneficiary as his current spouse.  Because he elected to cover his first spouse under SBP, a subsequent spouse is automatically covered under the SBP unless coverage is declined within one year of the marriage.
   
   d.  Public Law 105-261, dated 17 October 1998, added a paid-up provision to the SBP.  Effective 1 October 2008, members who are participating in SBP, who are both age 70 or older, and who have paid a total of 360 monthly premiums, will no longer have to pay premiums for continued annuity coverage under that program.  Our records reflect the applicant is in a SBP Paid up status effective 1 May 2010.
   
   e.  Coverage under SBP for Mrs. P______ was effective 25 March 1990, (marriage date of March 1989) and premiums became effective 1 April 1990, which is the first day of the month after one year of marriage.  Because no SBP premiums were paid from 1 April 1990, through 30 April 2010, the applicant incurred a debt of $63,952.30.
   
   f.  A debt has been established on the applicant's account in the amount of $63,952.30.  Monthly deductions will continuously be taken from his military retired pay account including interest until the debt is paid in full.  The applicant was given the option to petition the ABCMR to request cancellation of his SBP.
3.  The applicant provides a letter of support from his attorney (his daughter), authorized to handle his affairs and a power of attorney.  In her letter, she states:

   a.  At the request of the spouse (age 89), her brother, sister, and she relocated the applicant (age 87) to the East Coast in December 2013 to live in a retirement facility, because she (his spouse) was no longer able to handle his increasing confusion and isolation.  Both the applicant and his spouse agreed to each maintain one half of his retirement to maintain the separate households.
   
   b.  At the spouse's request, his daughter (the attorney) looked into the qualifications for spousal benefits in the event she was predeceased by the applicant.  Evidence was found showing the applicant checked into and realized he had, for some unknown reason, failed to sign her up for the program when they were married and was unable to because he could not use the telephone to figure out what do about the problem.  He became increasingly depressed and uncommunicative.  He did pursue the issue and would not discuss it with his wife, hastening his care under his children on the East Coast.
   
   c.  Both the applicant and his spouse relied on his retirement pay and his needs, in particular, were growing all the time.  Both of their estates were nearly $95,000.00 each.  (In 2013, when she and her sister stepped in, she realized the applicant had nearly depleted his savings through his several charitable contributions every week.)
   
   d.  The applicant's monthly needs already outstripped his intake and the $650.00 penalty imposed against him caused him to rely heavily on his savings for his basic needs alone.
   
   e.  In October 2013, as his attorneys in fact, knowing nothing of what they were getting into, contacted DFAS to look into the SBP for her father's spouse.  They were told the applicant would have to pay the remaining debt before his spouse would be entitled to SBP payments; but DFAS needed a copy of the marriage certificate before it could be determined how much he needed to pay. They were never told the debt payment would be mandatory, much less that the debt would be so great, or they would never have proceeded down that path; they simply would have left things as they were. 
   
   f.  They have learned that his debt is nearly $64,000.00 which will take him approximately 8 years to pay.  Also, should the applicant die prior to that time, his spouse, who is 89 years old with health issues of her own, would be responsible for paying the remaining balance.  In addition, it would make no sense for her to pay such an amount given she will most likely never recoup these funds.  
   
4.  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.

5.  Section 1448, Title 10, U.S. Code provides persons entitled to retired pay are eligible to participate in the SBP.  Paragraph a(6) provides for an election out of plan by person with spouse coverage who remarries.  A person who remarries may elect not to provide coverage under the SBP for the person's spouse.  An election under this paragraph is irrevocable, shall be made within one year after the person's remarriage, and shall be made in such form and manner as may be prescribed in regulation under Section 1455 of this title.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his participation in the SBP should be terminated and all resulting premiums deducted from his retired pay for this coverage should be reimbursed.  There is sufficient evidence to support this claim.

2.  The evidence of record confirms the applicant enrolled in the SBP for spouse only coverage upon his retirement on 1 January 1978.  That upon the death of his spouse in 1987, his participation was suspended.  The evidence also shows he remarried in 1989; however, he never provided a copy of his marriage certificate to the DFAS to resume his participation in the SBP and this benefit remained in a non-active status.  Only upon receipt of the marriage certificate some 24 years after the applicant's second marriage did the DFAS resume SBP coverage resulting in a debt of $63,932.30 for unpaid premiums beginning the first month following his first anniversary date of remarriage from 1 April 1990 through April 2010.

3.  The evidence of record fails to show the applicant ever submitted a copy of his marriage certificate to the DFAS to resume participation in the SBP and as such his enrollment in this plan remained in a suspended status and to date he has no interest in resuming this coverage.  Therefore, considering the age of the applicant and his spouse, his non-submission of his second marriage certificate, and the hefty debt incurred as a result of resuming SBP coverage, in the interest of equity and justice, the applicant's record should be corrected to show he elected not to resume SBP coverage on 25 March 1989, the date he married his second wife, which would also result in reimbursement of premiums paid for this benefit.




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 showing:

   a.  the applicant elected not to provide spousal Survivor Benefit Plan coverage for his post-retirement spouse and he informed the Defense Finance and Accounting Service of this fact on 25 March 1989, thereby canceling the debt that resulted as a result of unpaid premiums; and

	b.  reimbursing him all paid Survivor Benefit Plan premiums, if due, as a result of this 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)                                         AR20140011948



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ABCMR Record of Proceedings (cont)                                         AR20140011948



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