PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           29 August 2000                   
	DOCKET NUMBER:   AR2000035686

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

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John D. Miller		Chairperson	
	Mr. Roger Able		Member	
	Mr. Charles Gainor		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his records be corrected to show that he elected not to resume Survivor Benefit Plan (SBP) spouse coverage upon his remarriage.

3.  The applicant states that on 26 May 1999 he requested child coverage only for his newborn son.  The Defense Finance and Accounting Service (DFAS) then requested a copy of his marriage certificate.  He is sure he sent it with a note that he did not want spouse coverage.  If he had been aware of the 1-year rule, he would have notified them earlier.  When he retired he was not counseled whatsoever on these issues.  He was working in New England with Army Reserve units.  He was told to report to Fort Devens, MA for retirement            out-processing.  When he contacted Fort Devens, he was told the Retirement Services Office was closed and to go to Fort Dix, NJ.  When he got there on     17 February 1994, he was told they were closing also and to go to Fort Drum, NY for further processing.  Finally a clerk processed his paperwork but it wasn’t done right even then.  His spouse has concurred in this request.

4.  The applicant’s military records show that after having had prior service in the Regular Army, he enlisted in the U. S. Army Reserve on 7 July 1977.  He entered active duty in an Active Guard/Reserve (AGR) status on 29 August 1983.  He was assigned to Headquarters and Headquarters Company, 3d Battalion, 16th Infantry in Scarborough, ME when he retired for length of service on 1 April 1994. At that time he elected to participate in the SBP for spouse and child coverage.

5.  On 19 January 1996, the applicant divorced and SBP spouse coverage was suspended.  He remarried on 5 June 1998.  He apparently notified DFAS of his remarriage on 26 May 1999, when he notified them of the birth of his son.  The letter notifying the applicant that DFAS resumed SBP spouse coverage effective 1 June 1999 is undated.

6.  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.  Elections are made by category, not by name, and changes in SBP options are not authorized except in specific instances or authorized by law.

7.  Public Law 99-145, enacted 8 November 1985, permitted a previously participating retiree upon remarriage to elect not to resume spouse coverage or to increase reduced coverage for the latter spouse.  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.

CONCLUSIONS:

1.  The Board concludes that no Government error occurred in this case.  When the applicant initially enrolled in the SBP for spouse and child coverage, he made an irrevocable election for those categories.  Since he did not specifically decline SBP spouse coverage within one year of the date of his remarriage, DFAS acted properly when they resumed spouse coverage.  However, the Board concludes that it was his intent to decline to resume spouse coverage at the time he notified DFAS of his child’s birth and that his intent was communicated within the        one-year period specified by law.  In addition, the Board concludes that he was improperly counseled concerning the SBP program at the time he retired. 

2.  The applicant should be receiving a copy of “Army Echoes” which has a listing of Retirement Services Officers (RSO) responsible for each state.  If in the future he has any question regarding retiree benefits such as the SBP, he should contact his servicing RSO for information.

3.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant declined to resume SBP spouse coverage on 1 July 1998.

2.  That the Defense Finance and Accounting Service refund to the applicant all SBP premiums due as a result of the above correction.

BOARD VOTE:  

__jdm___  __ra____  __cg____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			John D. Miller
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000035686	
SUFFIX		
RECON		
DATE BOARDED	20000829	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.