PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           22 March 2001                   
	DOCKET NUMBER:   AR2000047289

	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.  

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Regan K. Smith		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 that his Survivor Benefit Plan (SBP) coverage be terminated.

3.  The applicant states that he did not sign the election form to have spouse and child SBP coverage.  He was incoherent in the hospital at the time it was prepared.  The Defense Finance and Accounting Service (DFAS) confirms that his signature is not on the form, making the election form invalid, and that the box denying coverage was checked and that his wife at the time (now his ex-wife) signed.  He provides a copy of his Survivor Benefit Plan Election Certificate,    DD Form 2656, a copy of a 21 March 2000 letter from him to DFAS, DFAS’s SBP premium bill, a letter from DFAS dated 5 May 2000, his divorce decree, his marriage certificate, and his current spouse’s concurrence with his request as supporting evidence.

4.  The applicant's military records show that he enlisted in the Regular Army on 14 October 1993.  He was married (date of marriage 23 January 1993) at the time he enlisted.

5.  In June 1994, the applicant received a gunshot wound to the thoracic spine and was immediately rendered paraplegic.  He was placed on the Temporary Disability Retired List (TDRL) on 5 January 1995 at a 100 percent disability rating.  On this date, a DD Form 2656 was completed.  The applicant was unavailable to sign.  Section VII was checked that he elected coverage for spouse and child based on full gross retired pay.  His spouse did not sign the form.  He was removed from the TDRL on 7 December 1995 and permanently retired at a 100 percent disability rating on 8 December 1995.

6.  The applicant divorced on 15 May 1998.  He remarried on 1 January 2000.

7.  In March 2000, DFAS informed the applicant that he owed $4,365.69 in overdue SBP costs (because he waived retired pay in lieu of VA disability compensation).  On 5 May 2000, in response to an inquiry from him, DFAS informed him that after reviewing his account they found that the election form they received was invalid due to his signature not being present.  Therefore, DFAS automatically set up an SBP account for spouse and child coverage.  They needed his divorce decree from his first spouse to stop coverage and sent him a remarriage election form since he had remarried.  Phone conversation with DFAS on 13 March 2001 indicated that they had not yet received his divorce decree or his remarriage election form.

8.  Public Law 92-245, 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.  If a valid election is not made, coverage automatically defaults to full coverage.  The term “dependent child” means a person who is unmarried; is under 18 years of age or at least 18 but under 22 years of age and pursuing a full-time course of study in a high school, college, or comparable recognized educational institution; is incapable of self support because of a mental or physical incapacity existing before the person’s 18th birthday, or is the child of a person to whom the Plan applies including an adopted child, a step or foster child or a recognized natural child who lived with that person in a regular parent-child relationship.

9.  Title 10, U. S. Code, section 1449 provides that if a person eligible to participate in the SBP is determined to be mentally incompetent by medical officers of the armed force concerned, an election may be made on behalf of that person by the Secretary concerned.  If the member is later determined to be mentally competent that person may, within 180 days after that determination, revoke that election.

10.  Public Law 96-402, enacted 9 October 1980 but effective 1 December 1980, established a withdrawal clause for members rated totally disabled by the VA.
Title 10, U. S. Code, section 1452(g)(1) provides that a person who has elected to participate in the SBP and who is suffering from a service-connected disability rated by the VA as totally disabling and has suffered from such disability 
while so rated for a continuous period of 10 or more years (or, if so rated for a lesser period, has suffered from such disability while so rated for a continuous period of not less than 5 years from the date of last discharge) may discontinue participation in the Plan.  Discontinuance is effective on the first day of the first month following the month in which the request is received.  Participation may not be discontinued without the written consent of the beneficiary or beneficiaries of the person.

11.  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 is convinced by the applicant’s contention that he did not make an SBP election because he was incoherent at the time.  However, that is just the reason that an SBP election was made for him by the Army in accordance with the law.  It is customary for the Army to provide full SBP coverage for a soldier’s eligible family members when the soldier is mentally incompetent to make that decision himself.  There is no Government error in this case.  Unless the applicant provides evidence that would show that one of the SBP beneficiaries shot him, the Board concludes that there was no injustice in making that SBP election for him.
2.  The applicant divorced on 15 May 1998.  If he had provided the divorce decree to DFAS, they would have suspended the SBP spouse costs for the period of time he was divorced.  He remarried on 1 January 2000 and his current spouse has provided her concurrence with his request to terminate his SBP.  He elected to terminate his coverage within one year of the date of his remarriage based upon Public Law 99-145 by the filing of this application to the Board.  

3.  It appears the applicant could not have requested termination of his SBP effective 5 January 2000 based upon Public Law 96-402.  His dependent children have not concurred with his request to terminate the SBP.  Public Law 96-402 requires the concurrence of the beneficiary or beneficiaries.

4.  Since the applicant’s spouse has given her concurrence to terminating the applicant’s SBP spouse coverage, it would be appropriate to show he requested to terminate his spouse coverage on 5 September 2000, the date of this application.  Children coverage would still remain in effect.  Without the concurrence of his dependent children or the legal guardian of his dependent children, it would not be appropriate to terminate his SBP children coverage.  The applicant should note the information in paragraph 8 above indicating that his SBP coverage for his children will normally terminate upon their reaching age 18.

5.  In view of the foregoing, the applicant’s records should be corrected 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’s SBP spouse coverage was suspended effective 15 May 1998 and terminated effective 1 January 2000 and that the SBP costs owed the Government be adjusted accordingly.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__slp___  __jpi___  __rks___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Shirley L. Powell
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000047289	
SUFFIX		
RECON		
DATE BOARDED	20010322	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.