IN THE CASE OF:	

		BOARD DATE:	 4 June 2015 

		DOCKET NUMBER:  AR20140015823 


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 correction of his records to show remission of an alleged debt of $6,739.58, return of all funds collected as a result of the alleged debt, and establishment of his current spouse as his eligible beneficiary to receive a Survivor Benefit Plan (SBP) annuity based on his full retired pay.

2.  The applicant states the U.S. Army Human Resources Command (HRC) and the Defense Finance and Accounting Services (DFAS) committed error and injustice, both before and after his retirement on 25 March 2009.

   a.  The applicant states that he and his former paralegal representative, 
Mr. M____ M____, informed HRC and DFAS in 2007, 2008, and 2009 via United States Postal Service (USPS) certified mail that he had married his current spouse, Alda Yousef V____.  He has documentation pertaining to receipt of the correspondence, which also included all the required supporting documents.  On 6 June 2008, he submitted a second DD Form 2656-6 (SBP Election Change Certificate) requesting that his current wife be designated as his SBP beneficiary.  He sent another letter on 28 September 2008 and called DFAS about the matter on 15 December 2008.  However, neither agency responded to any of the follow-up correspondence that he sent.

   b.  Since he did not receive any form of communication from either HRC or DFAS, he concluded that his request for SBP coverage for his spouse was approved.

   c.  On 26 February 2014, while reviewing his records he noticed a U.S. Office of Personnel Management (OPM), Notice of Annuity Adjustment, dated 
2 January 2014.  It indicated, "[t]he monthly annuity currently payable in the event of your death is $478 payable to 'Reynald'."  He states that is the name of his former spouse.  He adds that, "[a]lthough OPM has nothing to do with his U.S. Army retirement, it is also their requirement to document the name of survivor beneficiaries in the event of [his] death."

   d.  He telephonically contacted DFAS to discuss the discrepancy and to confirm that his current spouse was listed as his SBP beneficiary.  The representative advised him that she would notify OPM and provide them the correct SBP beneficiary information.  Several months later he followed up with another telephone call to DFAS and was given the same information.

   e.  He then telephonically contacted HRC and spoke to Ms. K____ P____.  He explained the situation and she advised him to forward the documentation to her.  He was subsequently referred to Ms. W____ as the new point of contact at HRC.  After several weeks of follow-up telephone conversations, he was informed that there was nothing more that could be done to obtain a response from DFAS.

   f.  On 4 June 2014, Mr. D. N____, Military Pay Supervisor, Retired and Annuitant Pay, DFAS, finally provided a response.  He wrote, "[a]n adjustment is being made in the SBP portion of your retired pay account based on documentation we received from you.  This adjustment is from no beneficiary coverage to spouse coverage with an effective date of March 25, 2009.  Since this is a retroactive change you have been undercharged for SBP.  Your debt in the amount of $6,739.58 is outlined in the attached worksheet.  If payment is not made in full or if another repayment plan is not made within 30 days of the date of this letter, deductions will be taken from your monthly retired pay to recover the debt.  Deductions will begin with your payment dated August 1, 2014."

   g.  He does not understand how it could take DFAS five years to officially acknowledge receipt of his original letter.  He submits the following questions:

* Why wasn't he informed in a timely manner by DFAS, HRC, or any other Federal agency that his spouse was designated as his SBP beneficiary?
* Assuming DFAS and HRC had sufficient administrative and legal resources, why did it take DFAS 5 years to notify him of the approval?


   h.  He adds that it is not legal or acceptable to him that he should incur a debt because of the delay in processing his request.  Therefore, the effective date relating to his request to add his spouse as his SBP beneficiary should be the date that the Army Board for Correction of Military Records (ABCMR) renders a favorable decision on his application.  In the absence of a favorable decision by the ABCMR, he requests an explanation for such decision that he may introduce as evidence in a U.S. court of law.

3.  The applicant provides copies of correspondence with DFAS, HRC, OPM, and USPS certified mail receipts (identified as Exhibits A through X).

CONSIDERATION OF EVIDENCE:

1.  The applicant's date of birth (DOB) is 25 March 1949.  He had prior active duty service in the Regular Army from 5 January 1967 through 1 December 1975.  After a break in military service he had Reserve service in the U.S. Army Reserve (USAR) from 10 March 1977 through 14 January 1997.

2.  On 21 October 1994, the Chief, Retired Activities Division, USAR Personnel Center, St. Louis, MO, notified the applicant that he had completed the required years of qualifying service to receive retired pay at age 60.

3.  On 14 November 1994, the applicant completed a DD Form 1883 (SBP Election Certificate) wherein he elected Option C (Immediate Coverage) for his former spouse (Melissa Ann) and his children based on full retired pay under the Reserve Component SBP (RCSBP).

4.  A State of California, County of Monterey, Salinas, CA, License and Certificate of Confidential Marriage, shows the applicant and Reynalda P____ married on 26 July 2003.

5.  On 10 November 2003, the applicant completed a DD Form 1882 (SBP Election Change) wherein he requested SBP coverage change based on a change in marital status.  He elected Option C (Immediate Coverage) for his spouse (Reynalda (no middle name) P____, DOB 6 January 1956) based on full retired pay under the RCSBP.

6.  U.S. Army HRC, St. Louis, MO, Orders P10-816781, dated 29 October 2008, placed the applicant on the retired list, in the rank of first sergeant/pay grade E-8, effective 25 March 2009.

7.  A review of the applicant's military personnel records failed to show a copy of a divorce decree or the date that he divorced his second spouse (Reynalda).
8.  In support of his application, the applicant provides the following documents.

   a.  USPS certified mail receipts, dated 27 November 2007, for mail addressed to HRC, Transition and Separations Branch, St. Louis, MO (Exhibits W and X) that indicate the applicant mailed documentation pertaining to his "change in marital status" and for direct deposit of his pay into his checking account.

   b.  Letter to DFAS, dated 15 October 2008, with USPS certified mail receipts (Exhibits F through H) that show the applicant provided information and a copy of his marriage certificate verifying his marriage to Alda Yousef T____, DOB
"15 March 1957."  He also provided his new mailing address.

   c.  HRC, St. Louis, MO, letter, dated 29 October 2008 (Exhibit V), that shows the Chief, Transition and Separations Branch, notified the applicant that his application for retired pay was approved.

   d.  DD Form 2656-6 (Exhibits R and S) completed and signed by the applicant (and notarized and signed by a witness) on 15 December 2008, that shows in –

* Section II (Current Coverage), item 7 (My current coverage is:), an "X" in the box for "Spouse Only"
* Section III (Conditions That Trigger Eligibility to Change Coverage), item 8 (I am requesting a change in coverage based on):

* "X" in the box for "Marriage – a member, who does not have a spouse at the time of initial eligibility, may provide SBP for the first spouse acquired after retirement by electing coverage before the first anniversary of the marriage"
* No "X" or entry in the box for "Remarriage – a member whose spouse coverage is suspended due to death of the spouse or divorce, has three options upon remarriage" and no "X" or entry for:

* resume existing level of coverage for new spouse
* increase existing level of coverage – up to full retired pay
* not resume any SBP coverage for new spouse
* or select coverage for new spouse if current coverage is former spouse coverage

* Section IV (Requested Change to Coverage), item 9 (Place an 'X' in the appropriate box to indicate your election), an "X" in the box for "Spouse Only" coverage"
* Section VI (Spouse and Children Information), item 11 (Spouse's Name, Social Security Number, DOB, and Date of Marriage) shows, in pertinent part, "Adla Yousef V____, 15 March 1951 [sic], 20 September 2008"

   e.  Letter to DFAS, dated 16 December 2008, with USPS certified mail receipts (Exhibits C through E) that show it was the second time the applicant mailed a notarized DD Form 2656-6 with marriage certificate requesting his spouse (Adla Y.) be designated as his SBP beneficiary (spouse only) based on full retired pay.

   f.  Letter to DFAS, dated 10 April 2009, with USPS certified mail receipts (Exhibits A and B) that show the applicant indicated that he mailed a notarized DD Form 2656-6 to DFAS on 15 December 2008 requesting his spouse (Adla Y., DOB 15 March 1957 be designated as his SBP beneficiary (spouse only) based on full retired pay.  He also indicated he had completed and was returning the DD Form 2894 (Designation of Beneficiary Information) DFAS had provided him.  He added, "I must rectify a previous typographical error regarding my wife's DOB.  Previously it was documented as "03/15/1951" (15 March 1951) which is incorrect."

   g.  OPM letter, dated 12 March 2014 and Notice of Annuity Adjustment, dated 2 January 2014 (Exhibits T and U).  The letter shows that in response to the applicant's telephonic inquiry concerning receipt of his divorce decree and marriage certificate, a review of OPM Court Ordered Benefit Branch files and the applicant's retirement file failed to reveal a copy of his divorce decree.  He was advised to provide an original court certified copy of his divorce decree and a copy of his marriage certificate.  The Notice of Annuity Adjustment shows, in pertinent part, "[t]he monthly survivor annuity currently payable in the event of your death is $478 payable to 'Reynald'."

   h.  DFAS letter to the applicant, dated 4 June 2014 (Exhibit L), that notified him of an adjustment in the SBP portion of his retired pay account based on documentation received from him.  The adjustment was from no beneficiary coverage to spouse coverage with an effective date of 25 March 2009.  He was advised if payment was not made in full or payment(s) by another repayment plan was not made within 30 days of the date of the letter, deductions would be taken from his retired pay.

   i.  Letter to DFAS, dated 17 June 2014, with applicant's comments inserted within DFAS letter, dated 4 June 2014, and USPS certified mail receipts (Exhibits I through Q, less Exhibit L), that show the applicant denied responsibility for the alleged debt because officials in DFAS had failed to do their job in April 2009.  He restated the history of his correspondence to DFAS requesting the change in his SBP coverage.  He also questioned how DFAS could establish a 30-day deadline for collecting the debt based on when he would respond to the letter.  He expressed strong disagreement with DFAS officials' sincerity and decision-making ability.  He requested copies of legal documents that support the DFAS decision regarding his alleged debt.

9.  "Army Echoes" is a quarterly newsletter for retired Soldiers, surviving spouses, and their families that is sent to all retirees/surviving spouses.  It routinely publishes information pertaining to the RCSBP/SBP that includes types of coverages, categories, and election options.  It particularly emphasizes the importance of verifying SBP information that appears on the retiree's monthly account statement.  The DFAS Retiree Account Statement provides SBP coverage information, including coverage type, annuity base amount, cost, and the DOB for each beneficiary.

10.  In connection with the processing of this case, DFAS was asked to verify information relevant to the applicant's SBP elections, coverage, and participation.  On 18 May 2015, a DFAS official indicated the applicant has full spouse coverage for Adla V____ and that his current SBP debt balance is $5,826.76. The DFAS official also provided a copy of a letter sent to Senator B____ B____ in response to her inquiry on behalf of the applicant.  The senator was informed that the applicant's SBP debt is valid.

11.  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.  Retiring members and spouses were to be informed of the SBP options and effects.

12.  Title 10, U.S. Code, section 1450 (Payment of annuity:  beneficiaries), states a monthly annuity under section 1451 of this title shall be paid to the person's beneficiaries under the plan, as follows:  to the eligible surviving spouse or eligible former spouse.

13.  DoD Financial Management Regulation 7000.14-R, volume 7A (Military Pay Policy and Procedures - Active Duty and Reserve Pay), chapter 2 (Repayment of Unpaid Portion of Bonuses and Other Benefits), paragraph 020204 (Conditions under review by the Secretary of the Military Department), provides that under circumstances not specifically mentioned in this chapter, the Secretary of the Military Department concerned has the discretion to, at some point in the process, render a case-by-case determination that the member's repayment of, 

or the Military Department's full payment of an unpaid portion of, a pay or benefit is appropriate based on the following:

   a.  contrary to a personnel policy or management objective;

   b.  against equity and good conscience; or 

   c.  contrary to the best interest of the United States.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request and the evidence he provides have been carefully considered.  

2.  The evidence of record shows, on 21 October 1994, the applicant was notified that he had completed the required years of qualifying service to receive retired pay at age 60.

   a.  On 14 November 1994, he completed an SBP Election Certificate and elected Option C (Immediate Coverage) for his former spouse (Melissa Ann) and his children based on full retired pay under the RCSBP.  (The evidence of record fails to show the date of marriage or divorce pertaining to his former spouse.)

   b.  He married Reynalda P____ on 26 July 2003.  On 10 November 2003, he completed an SBP Election Change based on a change in marital status.  He elected Option C (Immediate Coverage) for his spouse (Reynalda) based on full retired pay under the RCSBP.  However, the date of their divorce cannot be determined based on the available evidence of record.
   
   c.  It cannot be determined with any degree of certainty which spouse (if any) was entitled to the applicant's SBP (former spouse coverage) based on a court-ordered document, divorce decree, or "deemed election."  

   d.  He married Alda Yousef on 20 September 2008.  On 15 December 2008, he completed an SBP Election Change Certificate indicating the change was based on not having a spouse at the time of his initial eligibility for SBP.  He failed to indicate the change was based on remarriage.  

3.  He was placed on the retired list effective 25 March 2009 and he began receiving retired pay.

4.  The evidence of record indicates that DFAS suspended the applicant's SBP premiums; however, the date of suspension cannot be determined.
5.  The evidence of record shows, on 10 April 2009, the applicant sent additional documentation to DFAS verifying his marriage and to correct his spouse's DOB.

6.  On 12 March 2014, OPM notified the applicant that the monthly survivor annuity payable in the event of his death is $478 payable to 'Reynald'."  Thus, the evidence of record indicates that the applicant retired from U.S. Government Civil Service.

7.  The evidence of record also shows that the DFAS Retiree Account Statement provides SBP information, including coverage type, annuity base amount, cost, and the DOB of the beneficiary.  However, there is no evidence of record that shows the applicant notified DFAS concerning an error in his SBP coverage from the time that he retired from the U.S. Army on 25 March 2009 through May 2014.

8.  On 4 June 2014, DFAS notified the applicant of an adjustment in the SBP portion of his retired pay account based on documentation received from him.  The adjustment was from no beneficiary coverage to spouse coverage with an effective date of 25 March 2009.  Based on the retroactive change, the applicant was informed he had been undercharged for SBP and that he had a debt in the amount of $6,739.58.

9.  The evidence of record indicates the applicant submitted timely notification of a change in his SBP election to resume SBP payments based on his marriage to his current spouse.

10.  The evidence of record also shows the applicant should have been aware that SBP payments were not being deducted from his retired pay account.  However, he failed to take any action during a 5-year period to attempt to correct the matter.  It is reasonable to assume the applicant would have known that he would be responsible for the uncollected SBP payments once his SBP coverage was corrected.  As such, a reasonable person would have taken actions to save the overpayment he was receiving in his Army retired pay.  Further, notwithstanding any error with respect to the name of his spouse, the applicant actually had spouse coverage during that time period.  Had he died, his current spouse (Alda Yousef) would have received an SBP annuity minus any unpaid premiums accrued up to the time of his death.

11.  The applicant petitions the Board for remission of a debt related to SBP coverage that he clearly desired for the benefit of his spouse and his rationale for the request is that DFAS did not act timely.  However, the evidence of record also shows the applicant failed to act timely in attempting to help resolve the matter.  Specifically, there is no evidence he acted to correct the matter from when he began receiving Army retired pay in March 2009 until May 2014!
12.  Therefore, in view of all of the foregoing, there is no basis for granting the applicant's 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)                                         AR20140015823



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ABCMR Record of Proceedings (cont)                                         AR20140015823



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