RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:		DOCKET NUMBER: BC-2013-00928

	 			COUNSEL:  NONE

				HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

The debt accrued for Survivor Benefit Plan (SBP) annuity be 
forgiven.

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APPLICANT CONTENDS THAT:

In July 1998, he was awarded 100 percent disability from the 
Department of Veteran’s Affairs (DVA).  At that time, his 
military pay was stopped, yet, he was continually billed for SBP 
premiums.  His survivor would not have received SBP as they were 
entitled to Dependency Indemnity Compensation (DIC) from the DVA 
and that amount is higher.  The law prohibits a survivor from 
receiving both.  

In support of the appeal, the applicant provides a personal 
statement, DVA rating and the Defense Finance and Accounting 
Service (DFAS) Debt Waiver Denial.

The applicant’s complete submission, with attachments, is at 
Exhibit A.

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STATEMENT OF FACTS:

The applicant is a former member of the Air Force who retired on 
1 March 1974.  On 12 June 1998, he was granted a 100 percent 
disability compensation rating.  The rating was later modified 
to include individual unemployablity effective 6 June 1997.

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AIR FORCE EVALUATION:

DFAS recommends denial.  The applicant elected SBP on 1 March 
1974.  Under the law, SBP withdrawal due to disability provides 
certain retired military members with the option to discontinue 
participation in SBP.  One of the qualifications for withdrawal 
is that the retired service member must be suffering from a 
service-connected disability rated by the DVA as totally 
disabling (100 percent rating) and have suffered from such a 
disability while so rated for a continuous period of 10 or more 
years.  If qualified for withdrawal, the monthly costs terminate 
on the first day of the month following receipt of a valid 
withdrawal request from the retired service member.  There are 
no provisions, under the law, where a military retiree can be 
refunded the SBP costs paid prior to his specific request to 
withdraw.  In the event of his death, the surviving spouse would 
receive full SBP costs refund if her entitlement to the DVA DIC 
program proved more beneficial.

In April 2001, the applicant was provided the SBP withdrawal 
fact sheet and the withdrawal consent form to complete and sign 
from the SBP.  He did not choose to withdraw from the SBP.  The 
applicant notified DFAS of the death of his spouse on 
23 September 2009.  An audit of his account found that he was 
delinquent.  

Effective 1 October 2008, members participating in SBP who are 
70 years or older and who have paid into SBP for a period of 360 
months, will no longer pay premiums for continued SBP annuity.  
The applicant is over the age of 70 and his SBP premiums have 
been stopped.  In July 1998, his military retired pay account 
was placed in suspended status due to his DVA entitlement 
exceeding his military pay entitlement.  A direct remittance 
account was created so that he could continue to pay his monthly 
SBP premiums and he received monthly SBP premium bills showing 
the balance and interest charges. 

The applicant was sent a letter dated 3 March 2011, explaining 
that an audit of his direct remittance account showed that he 
had an outstanding balance of $16,959.27 due to non-payment.  
This debt included his premiums for the period of July 1998 
through the September 2008 and accrued interest for the period 
of July 1998 through February 2011.  

The complete DFAS evaluation is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He does not recall being provided an SBP withdrawal consent form 
and does not believe he was given the opportunity to withdraw 
from SBP.  The forms were listed as an attachment to the DFAS 
letter; however, they were not attached to the letter.

The whole issue boils down to the simple fact that in July 1998 
he became 100 percent disabled.  His survivor became entitled to 
DIC which is much larger than SBP.  There is a law on the books 
that states a survivor cannot receive both.  Consequently, he 
has been asked to pay for a benefit that his survivor could not 
logically receive.  

The applicant’s complete response, with attachments, is at 
Exhibit D. 

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by 
existing law or regulations.  

2.  The application was not timely filed; however, it is in the 
interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice.  We took 
note of the applicant’s complete submission in judging the 
merits of the case; however, we agree with the opinion and 
recommendation of the Air Force office of primary responsibility 
and adopt its rationale as the basis for our conclusion that the 
applicant has not been the victim of an error or injustice.  The 
applicant has provided no evidence to indicate that he withdrew 
from SBP which caused the debt.  Therefore, in the absence of 
evidence to the contrary, we find no compelling basis to 
recommend granting the relief sought in this application.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not 
demonstrate the existence of an error or injustice; that the 
application was denied without a personal appearance; and that 
the application will only be reconsidered upon the submission of 
newly discovered relevant evidence not considered with this 
application.

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The following members of the Board considered AFBCMR Docket 
Number BC-2013-00928 in Executive Session on 9 January 2014 and 
22 May 2014, under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2013-00928 was considered:

	Exhibit A.	DD Form 149, dated 15 Feb 13, w/atchs.
	Exhibit B.	Letter, DFAS, dated 4 Apr 13, w/atchs.
	Exhibit C.	Letter, SAF/MRBR, dated 14 Apr 13.
	Exhibit D.	Letter, Applicant’s Response, dated 4 May 13.