MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           8 December 1999                   
	DOCKET NUMBER:   AR1999028472

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. James P. Huber		Member	
	Mr. Arthur A. Omartian		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, that he be reimbursed the Survivor Benefit Plan (SBP) premiums the Defense Finance and Accounting Service (DFAS) is now charging him for coverage of his spouse R_____.

APPLICANT STATES:  That neither he nor R_____ requested to be covered by the SBP.  During the time of their marriage from 1995 to 1999 no spouse premiums had been taken out of his retired pay.  This was discovered after his recent marriage to S_____ and then DFAS began attaching his retired pay for premiums due during his marriage to R______.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army on 9 June 1972 and retired on 1 July 1992.

At the time the applicant retired, he was married to B_____ and elected spouse and children SBP coverage.  

The applicant divorced B_____ at some point and apparently his spouse SBP coverage was suspended at that time.  He married R_____ on 2 May 1995 and apparently never notified DFAS of his remarriage since spouse SBP coverage did not resume at that time.  He divorced R_____ on 10 June 1997.  (The divorce decree does not mention the SBP).  He married S______ on 3 April 1999 and apparently notified DFAS of this marriage.

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.  Changes in SBP options are not authorized except in specific instances, or authorized by law.

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.

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.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
2.  The applicant’s SBP election was properly made at the time he enrolled.  By electing spouse and children coverage, he made a permanent and irrevocable decision to have spouse coverage as long as he had an eligible spouse.

3.  The applicant could have elected, within one year of his marriage to R_____, not to resume spouse coverage but he provides no evidence that he did so.  Since it appears he did not do so the previously suspended coverage would have resumed by default on the first day of the month following the first anniversary of the remarriage, with costs owed from that date, had DFAS been aware of his marriage to R______.  Since DFAS was not made aware of his marriage to R_____ until he informed them of his marriage to S______, DFAS properly collected the SBP premiums owed for the time R______ was his eligible beneficiary.

4.  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

__RVO___  __JPH___  __AAO___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999028472	
SUFFIX		
RECON		
DATE BOARDED	19991208	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.00	
2.		
3.		
4.		
5.		
6.