PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           20 September 2001                   
	DOCKET NUMBER:   AR2001060303

	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:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Kenneth W. Lapin		Member	
	Ms. Paula Mokulis		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 records be corrected to show he declined to participate in the Survivor Benefit Plan (SBP), that his spouse concurred in his decision, and that all SBP premiums collected be refunded to him.

3.  The applicant states that he declined the SBP when he retired.  His wife concurred but she was not at Fort Bragg, NC at the time and apparently she did not receive a notice to sign giving her concurrence.  No notices or collections were made between 1994 and 2001.  The Defense Finance and Accounting Service (DFAS) notified him in February 2001 that he owed over $8,000 in back premiums.  He provides an affidavit from his now-former spouse wherein she states that they discussed the SBP when he retired.  She does not recall whether or not she signed a concurrence statement; however, she did not desire the SBP then and does not desire it now.

4.  The applicant’s military records show that after having had prior service, he reenlisted in the Regular Army on 20 April 1973.  He retired on 1 April 1994.  At that time he declined to participate in the SBP.  The Data for Payment of Retired Army Personnel, DA Form 4240, does not contain the applicant’s spouse’s signature, does not indicate that a counseling letter was sent to his spouse, nor is the section requiring the spouse’s signature signed by the Retirement Services Office counselor.

5.  The applicant and his spouse divorced on 1 February 2000.  The court awarded his spouse $825.00 of his disposable retired pay.  The only mention of the SBP was that the Army was ordered to give his spouse a legible copy of the applicant’s SBP election or the waiver of the same.

6.  By letter dated14 February 2001, DFAS informed the applicant that the SBP portion of his retired pay account was being adjusted from declined to automatic spouse coverage based on the fact his spouse did not concur in his declination. 

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

8.  Public Law 99-145, enacted 8 November 1986, required a spouse’s written concurrence for a retiring member’s election that provides less than the maximum spouse coverage.  If the spouse’s written concurrence was not obtained, SBP coverage defaulted to spouse coverage.

CONCLUSIONS:

1.  The Board concludes that a Government error occurred in this case.

2.  The applicant declined to participate in the SBP when he retired.  His spouse was required to be counseled concerning his decision.  Since she was not available in person for counseling, a letter was required to be sent to her.  The DA Form 4240 indicates that such a letter was never sent to her.  DFAS did not notice this error until seven years later, when they informed the applicant that he had made an invalid SBP election by not obtaining his spouse’s written concurrence with his declination and imposing a $8,000 debt upon him for back premiums.  There is reasonable doubt as to whether the applicant’s spouse would have been provided the annuity had the applicant died prior to this time.

3.  The applicant and his spouse divorced in February 2000.  His now-former spouse has provided an affidavit declaring that they had discussed the SBP at the time of his retirement and mutually agreed to decline it.  The SBP is not mentioned in the divorce decree and she states that she did not desire the SBP as part of the divorce settlement.

4.  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 now-former spouse signed the DA Form 4240 on 1 January 1994 concurring in the applicant’s declination of the SBP.

2.  That the debt held against the applicant for back SBP premiums be cancelled and any portion of that debt already collected be refunded to him.

BOARD VOTE:  

__rjw___  __kwl___  __pm____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Raymond J. Wagner
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001060303	
SUFFIX		
RECON		
DATE BOARDED	20010920	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.00	
2.		
3.		
4.		
5.		
6.