MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            20 May 1999       
	DOCKET NUMBER:   AC98-10031
				   AR1999023650

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Ms. Margaret V. Thompson		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, correction of the military records of her late husband, a former service member (FSM), to show that he elected survivor benefit plan (SBP) participation for his spouse.  

APPLICANT STATES:  That she had no knowledge of the matter.  Had she known, she would have been more than glad and willing to pay in order to receive the SBP benefit.   

EVIDENCE OF RECORD:  The military records of the FSM show:

The FSM retired from the Army on 31 March 1983 in the rank of Command Sergeant Major (CSM).  He had 26 years, 9 months, and 15 days of service.
Prior to his retirement, he elected to participate in the SBP with coverage for his first wife and dependent children based on a reduced portion of his retirement pay.  His first wife was notified of his election.  He divorced in 1989 and his spouse costs for participation in the program were suspended. 

On 10 March 1995 the applicant remarried, but failed to notify the Defense Finance and Accounting Service (DFAS) in Cleveland of his marriage until April 1996.  Upon discovery of the remarriage, his spouse costs resumed effective the first day of the month following the one-year anniversary of the remarriage. 

On 9 April 1996 the FSM requested the Defense and Finance Accounting Service (DFAS) in Cleveland provide information concerning the SBP plan for his second wife, and asked that his son be removed from coverage under the plan, as he had turned 18, and was in the service.

In an undated letter received at the Army Retirement Service in Alexandria on    19 August 1996, the FSM requested assistance in resolving problems he had with the SBP.  He stated, that neither he or his second spouse wanted to participate in the plan until he received information on the plan.  However, the plan was forced on him because of automatic coverage after one year.  He received no information, but an adjustment in his pay which began SBP for $32.61 per month beginning in June 1996.  He immediately notified the finance center, was notified that the money would be refunded; however, this did not happen.  He was informed that the SBP was automatically started one year after he remarried.   

The FSM stated he remarried in March 1995 and he requested information in April 1996.   He went on to say that information concerning the automatic provisions of SBP was supposed to be in ECHO, but he had not received ECHO in years.  Had he known about the automatic coverage he and his spouse would have responded before the one year had elapsed.  He requested that the SPB coverage be stopped, and the money taken from him thus far be refunded.  He stated that “we neither need nor desire the coverage”, and that the cost to participate in the program, which he never wanted in the first place would be a very bad financial decision for them.

On 19 August 1996 the Chief of the Army Retirement Services notified the DFAS-Cleveland that the request from the FSM to not resume spouse coverage upon remarriage was approved retroactive to 1 April 1996.  DFAS-Cleveland was requested to notify his current spouse and to refund spouse costs related to that action. 
  
On 20 August 1996 the Chief of the Army Retirement Services responded to the letter from the FSM, and notified him that when a retiree remarries, coverage under the SBP is automatic at that time unless a written request to decline to resume SBP is made by the retiree within one year of the remarriage.  He was informed that it was the retiree’s responsibility to inform DFAS-Cleveland of any change in beneficiary status, to include remarriage, and upon discovery, they execute their responsibility to notify a new spouse if the retiree requested that spouse coverage not be resumed, all which must be accomplished before the one year anniversary.  That official stated that the FSM elected to participate for his spouse on his retirement date, his spouse coverage was subsequently suspended, and he remarried in March 1995.  He had until March 1996 to inform DFAS-Cleveland of the remarriage and to state his intent regarding resumption of spouse coverage.  DFAS-Cleveland complied with federal law in reestablishing his coverage.  He was informed, however, that his request to not resume SPB coverage for his current spouse was approved as an exception to policy.  DFAS-Cleveland would be directed to make the administrative correction, his spouse would be notified of the decision, and his premiums would be refunded.  Prior to the official notification of this decision to his spouse, the applicant passed away on 19 September 1996.   
 
On 15 November 1996 the applicant, in a letter to the Chief of the Army Retirement Services, stated that the information [concerning her late husband’s decision to not resume SBP] was a total shock, and that she was never notified.  She had no way of knowing anything concerning the procedures since she had never been exposed to the military.  She stated that the only income she has is social security and a small annuity from a previous employment, and that the money from SBP would be a great help and a small price to pay for her late husband’s dedication and heroism for this country.  

In a 26 November 1998 letter to the applicant, DFAS-Cleveland provided her information concerning her late husband’s retired pay account, to include a synopsis of his involvement in the SBP.  She was informed that, based on the approval of the request of the FSM to not resume spouse coverage upon remarriage, a refund of the retroactive spouse costs that were deducted from his retired pay checks for the period 1 May 1996 through 30 August 1996 was refunded to him.  
The applicable provisions of Title 10, USC, states in effect that if spouse coverage is elected and the spouse is lost through death or divorce, the cost of SBP coverage is suspended.  If the member remarries and has not converted to former spouse coverage, three options are available.  The member must notify the finance center of the desired option within one year of the new marriage.  If the member fails to notify the finance center, option one below will automatically take effect on the first anniversary of the remarriage and the member will be responsible for the premium costs beginning the first day of the 13th month.  The three options are:

1.	Resume the original level of spouse coverage.
2.	Elect not to resume spouse SBP coverage, in which case the spouse will be notified and the election cannot be changed.
3.	Elect to cover an increase portion of retired pay.     

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  Upon receiving information in April 1996 that the FSM had remarried in March 1995, the DFAS-CL automatically reinstated the SBP for his new spouse beginning the first day of the month following his one year anniversary of the remarriage, in accordance with provisions of law.

2.  The FSM took exception to this, stating that neither he nor his spouse wanted to participate in the SBP until he obtained all the information concerning this plan, and that he and his spouse had discussed the coverage, but not knowing what the cost would be, asked for the information necessary to make a decision.  He then requested that the SBP coverage be stopped and money refunded to him, as neither he or his spouse needed or desired the coverage.  He stated that the cost to participate in the plan would be a very bad decision for them.  

3.  The Army Retirement Services granted his request as an exception to policy, and a letter was forwarded to him on 20 August 1996 notifying him of this decision.  DFAS-Cleveland was notified of this decision, requested to notify his current spouse, and to refund money due him.  The DFAS had not notified the spouse of the FSM prior to his death 19 September 1996.  This lack of notification, however, has no effect on the decision to stop the SPB coverage.   
While Title 10, United States Code, section 1448(a)(6)(D) requires notification of a spouse for whom a retiree elects not to provide spouse coverage upon remarriage, such notification does not require the concurrence of the spouse, and does not carry with the power of forcing the member to do otherwise.

4.  The Board notes that the FSM stated in his letter to the Army Retirement Services that he and his spouse had discussed the SPB and that on two occasions in that letter he stated that both he and his spouse neither needed nor desired the coverage.  The Army agreed to the wishes of the FSM.  There is no error nor is there an injustice in this case.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___emw__  ___hof__  ___mvt__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-10032/AR1999023650	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990520	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. 137.00		
2.		
3.		
4.		
5.		
6.