IN THE CASE OF: BOARD DATE: 7 April 2016 DOCKET NUMBER: AR20150007802 BOARD VOTE: ___x_____ ___x___ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 7 April 2016 DOCKET NUMBER: AR20150007802 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing he notified the Defense Finance and Accounting Service in September 1998 that his former spouse remarried on 10 September 1998, b. showing his SBP spouse-only coverage premiums were suspended effective 1 October 1998, and c. paying him any additional monies due as a result of these corrections. ___________x______________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 7 April 2016 DOCKET NUMBER: AR20150007802 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests correction of his military records to show: a. his former spouse remarried on 10 September 1998 (before age 55), b. his Survivor Benefit Plan (SBP) payments were suspended, and c. his SBP premiums were refunded. 2. The applicant states: * he has been paying SBP premiums since his retirement * he has been divorced from the beneficiary since April 1994 * his ex-wife remarried in July 1998, but the SBP deductions continued until April 2015 * he petitioned for reimbursement in March 2015 * he received payment from the Defense Finance and Accounting Service (DFAS) in April 2015, but for only the last 6 years * since his ex-wife remarried before age 55, the deductions should have stopped * DFAS was provided the appropriate documentation (divorce decree and his ex-wife's marriage license) * DFAS should have stopped the deductions * he believes DFAS is required to refund the remaining payments (approximately 10 1/2 years) 3. The applicant provides: * divorce decree * former spouse's marriage license CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. Having prior enlisted service in the Regular Army, the applicant again enlisted in the Regular Army on 19 July 1967. 3. On 6 November 1982, he married D____ (born on 20 November 1955). 4. His DA Form 4240 (Data for Payment of Retired Army Personnel), dated 10 March 1993, shows he elected SBP spouse-only coverage, reduced amount. 5. He retired on 31 July 1993 in the rank of sergeant major. 6. He and D____ divorced on 11 April 1994. The divorce decree shows D____ as the SBP beneficiary. 7. He provided a copy of his former spouse's marriage license which shows she remarried on 10 September 1998 (at age 42). 8. DFAS records show: a. In October 1998, the applicant's former spouse wrote a letter to DFAS requesting a name change due to her marriage on 10 September 1998. b. In March 2015, the applicant wrote to DFAS requesting stoppage of the SBP deductions and a refund of his SBP premiums because his former spouse remarried on 10 September 1998. c. The applicant was refunded $15,089.30 for overpayment of SBP premiums for the period 11 March 2009 to 31 March 2015. REFERENCES: 1. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. To retain annuity eligibility, a surviving spouse cannot remarry before age 55. If he or she remarries before age 55, eligibility may be regained if that remarriage is terminated by death, divorce, or annulment. 2. Title 31, U.S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U.S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove. DISCUSSION: 1. The evidence shows the applicant enrolled in the SBP for spouse-only coverage in March 1993 and it appears an election for former spouse coverage was made after their divorce in 1994. 2. In 2015, he found out his former spouse's remarriage in September 1998 (before age 55) made her ineligible for SBP benefits. He then notified DFAS. As a result, his retired pay account was adjusted to reflect no beneficiary coverage effective 11 March 2009 and he was refunded some monies for overpayment of SBP premiums. However, due to the barring statute, the effective date of the change to his SBP cost is 11 March 2009, which is 6 years from the date notification was received by DFAS. 3. Since he continued to pay SBP premiums after his former spouse remarried and she was no longer an eligible beneficiary, it would be appropriate to correct his military records to show he notified DFAS in a timely manner of her remarriage and his SBP premiums were suspended effective 1 October 1998. It would be appropriate to refund him any additional monies due as a result of these corrections. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150007802 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150007802 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2