APPLICANT REQUESTS: In effect, disenrollment from SBP (Survivor Benefit Plan) participation and receive a refund of all costs paid.
APPLICANT STATES: In effect, that he did not elect to participate in SBP; that this action was initiated without his consent; that if he had not been recently divorced and trying to change his beneficiaries he would not have known that SBP premiums were being deducted from his pay. The applicant also alleges that he is divorced, however the particulars are missing from his file.
EVIDENCE OF RECORD: The applicant's military records show:
He was born on 19 September 1957. He enlisted in the Regular Army on 8 April 1976. On 30 October 1978, while assigned to a unit in Germany, the applicant was involved in an motor vehicle accident. The applicant sustained multiple injuries and due to the extent of his injuries he was referred to a Physical Evaluation Board (PEB). The PEB found the applicant unfit for duty and recommended that he be placed on Temporary Disability Retired List (TDRL). The applicant concurred with the PEB findings and recommendation.
On 29 March 1979, the applicant executed a DA Form 4240. The applicant initialed Part III, 12b electing SBP for spouse and dependent children based on full retired pay. He acknowledged that the election made was irrevocable. His signature was witnessed by the RSO (retirement services officer) and another individual from the Patients Affairs Division.
On 26 June 1979, the applicant was released from active duty in pay grade E-4, by reason of physical disability. On
27 June 1979, the applicant was placed on TDRL with a disability rating of 70 percent. Sometime after the birth of his third child, the applicant was advised by Defense Finance and Accounting Service (DFAS) that his election had been mistakenly carried since the date of retirement as spouse only, children excluded, and that no child costs had been collected. DFAS informed the applicant that he owed premium costs for SBP and that the deductions would be made from the Department of Veterans Affairs compensation.
On 31 December 1980, the applicant was removed from TDRL and permanently retired in pay grade E-4 , by reason of permanent physical disability with a disability rating of
80 percent.
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. The election made by the soldier was irrevocable.
Title 38, United States Code, section 1318, provides that a service member may withdraw from the SBP after having held a 100 percent disability rating either for 5 continuous years from the last date of discharge from active duty, or 10 continuous years immediately preceding death.
In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from the SBP Board. The SBP Board recommended that the applicants request be disapproved and that the costs for the child portion of his spouse and child election until date of divorce and child only costs since date of divorce be collected retroactively.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:
1. The evidence of record shows that on 29 March 1979, the applicant elected SBP for spouse and dependent children (copy attached). He acknowledged in writing that the election made was irrevocable. His signature was witnessed by the RSO and another individual from the Patient Affairs Division.
2. The applicants allegation that he does not remember electing SBP participation does not provide a basis for granting the relief requested.
3. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence which would satisfy the aforementioned requirement.
4. In view of the foregoing, there exists no basis for granting the applicants request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
NOTE: The Commander, Army Reserve Personnel Center, is requested to advised DFAS, Cleveland, to audit the applicants account beginning with the date of his retirement to the present to ascertain the costs of the SBP premiums which may be owed.
BOARD VOTE:
GRANT
GRANT FORMAL HEARING
DENY APPLICATION
Karl F. Schneider
Acting Director
ARMY | BCMR | CY2014 | 20140008614
His request to cancel this debt is ineligible for a waiver. Following the applicant's retirement, he elected spouse SBP coverage. He did not pay SBP premiums and despite his non-payment, his spouse had the benefit of SBP coverage.
ARMY | BCMR | CY2008 | 20080012794
IN THE CASE OF: BOARD DATE: 23 September 2008 DOCKET NUMBER: AR20080012794 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. On 10 December 2007, the applicant's case was considered by an informal PEB. There is no specific form to be used when requesting cancellation of SBP and the applicant has applied to this Board for relief.
ARMY | BCMR | CY2013 | 20130004104
This law also provides that every member having a spouse and/or child(ren), who retired/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list. He elected SBP coverage for spouse and children based on the full amount. As a result, DFAS cannot automatically deduct SBP premiums from the member's monthly pay.
ARMY | BCMR | CY2008 | 20080005392
Therefore, DFAS established the applicants retired pay account with SBP coverage at the maximum rate, based on Spouse-only coverage, the default SBP election. The applicant contends that his records should be corrected to show that he elected not to participate in the SBP. When the applicant's retired/retainer pay account was established, DFAS also established his retired pay account with SBP coverage at the maximum rate, based on Spouse-only coverage, the default SBP election.
ARMY | BCMR | CY2014 | 20140007817
He was advised that the SBP premiums would be deducted from his Military Disability Retired Pay every month. Therefore, it would be appropriate to correct the record to show his participation in the SBP was terminated effective 23 September 2013. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to by: a. showing his DD Form 2656-2 was received and processed on 23 September 2013; b. terminating his participation in the SBP...
ARMY | BCMR | CY2012 | 20120010237
BOARD DATE: 8 January 2013 DOCKET NUMBER: AR20120010237 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. When the error was discovered, his son was added to the SBP account and an adjustment was made from "declined" to "child" coverage, effective 1 July 2011. The law stipulates that a member who does not have a dependent child at the time of initial eligibility for SBP may elect coverage for a dependent child within the one-year period after acquiring the first dependent child.
ARMY | BCMR | CY2015 | 20150009327
The evidence of record shows the applicant submitted a DD Form 2656 and a DD Form 2656-1 wherein he elected to participate in the SBP for former spouse and children coverage pursuant to a written agreement previously entered into voluntarily as part of divorce proceedings and incorporated in a court order. The divorce proceedings do not compel the applicant to provide SBP coverage for his former spouse. Although the applicant indicated on the forms that he entered into a written agreement...
ARMY | BCMR | CY2010 | 20100022618
She and the FSM were married in 1988 and he elected spouse coverage for her within the first year of their marriage. The applicant provides: * the FSM's divorce degree * the FSM's DD Form 1883 (Survivor Benefit Plan Election Certificate) * the applicant and the FSM's marriage license * the FSM's Joint Uniform Military Pay System (JUMPS)-Army Retired/Annuitant Pay Statement effective February 1991 * a letter from DFAS to the FSM, dated 1 February 1991 * the FSM's Retiree Account Statement...
ARMY | BCMR | CY2012 | 20120004360
The applicant requests, in effect, his military records be corrected to show he terminated his Survivor Benefit Plan (SBP) participation for spouse coverage. It appears he may not have informed DFAS about his second marriage and divorce until 5 years after he married his second spouse and one year after they divorced. If he should marry again and not desire his new wife to be covered by the SBP, he must notify DFAS before the first anniversary of the marriage.
ARMY | BCMR | CY2010 | 20100016227
The SBP 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. The evidence of record shows the applicant elected SBP coverage for "dependent children only" on 5 September 1978. At the time of the SBP election, his children were eligible for SBP coverage.