| Mr. Loren G. Harrell | Director | |
| Mrs. Nancy Amos | Analyst |
| Ms. June Hajjar | Chairperson | |
| Mr. Fred N. Eichorn | Member | |
| Mr. Thomas B. Redfern, III | Member |
2. The applicant requests that he be entitled to withdraw from the Survivor Benefit Plan (SBP) and that he receive a refund of all premiums from 1 December 1980 to date.
3. The applicant states he was never informed of the change of law that allowed him to withdraw. He provides correspondence from the VA, his Congressman, and the Army Finance and Accounting Center concerning his SBP, and none of these offices told him he could withdraw from the Plan.
4. The applicant’s military records show that after initially serving in an enlisted status in the Regular Army from 9 May 1956 – 22 August 1968, he was appointed a warrant officer on 23 August 1968. On 15 November 1977, he was retired by reason of physical disability at a 100 percent rating. At that time he had elected to participate in the SBP with “spouse and child” coverage.
5. 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. Changes in SBP options are not authorized except in specific instances or authorized by law.
6. Public Law 96-402, dated 9 October 1980 allowed, under certain conditions, a retiree rated totally disabled by the VA to suspend his participation in the SBP. Those conditions were: If a person was suffering from a service-connected disability rated by the Secretary of Veterans Affairs 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 such person’s last discharge or release from active duty.
7. In the processing of this case, an advisory opinion was obtained from the Army Retirement Services. The opinion recommended his request be approved, with the exception that it be made retroactive to 1 December 1982 instead of 1 December 1980. The appropriate cost refund should be paid to him and the cost refund for the period prior to 1 December 1982 paid to his surviving spouse upon his death. An article announcing the legislative changed appeared in the November/December 1981 issue of the Army Echoes. It is possible that due to his total waiver of retired pay in lieu of VA disability compensation that he did not receive the Army Echoes, so leniency in this matter is recommended. A refund of SBP costs paid from 1 December 1982 (5 years after he was discharged with a 100 percent disability rating, the date he was first eligible for withdrawal) through 1 October 1997 (the effective date of his withdrawal) should be paid.
CONCLUSIONS:
1. Public Law 96-402 was enacted on 9 October 1980, which made the applicant eligible to withdraw from the SBP on 1 December 1982.
2. The applicant provides correspondence from the VA, his Congressman and the Army Finance and Accounting Center regarding SBP questions he had. There is no evidence of what his particular questions were, but no where in any of this correspondence was he informed that a law had been passed that would make him eligible to withdraw from the SBP if he desired within 18 months.
3. The barring statute should not apply in this case. The applicant first claimed information about his SBP payments in 1981. In addition, this is not a claim against the government; it is a claim for a reimbursement of monies taken out of his retired pay and/or disability compensation entitlements.
4. The advisory opinion noted that the applicant had withdrawn from the SBP in October 1997. It recommended that the withdrawal be made retroactive to 1 December 1982 with the appropriate refund costs paid to him and the cost refund for the period prior to 1 December 1982 paid to his surviving spouse upon his death.
5. In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.
RECOMMENDATION:
1.
That all of the Department of the Army records related to this case be corrected by
a. making the applicant’s withdrawal from the SBP retroactive to 1 December 1982;
b.
reimbursing the applicant the appropriate cost refund for the period 1 December 1982 – 1 October 1997;
c. paying the applicant’s spouse the cost refund for the period prior to 1 December 1982 upon his death.
2. That the applicant be advised that his taxable income will be affected based on this refund.
3. That so much of the application as is in excess of the foregoing be denied
BOARD VOTE:
JH_____ FNE_____ TBR_____ GRANT AS STATED IN RECOMMENDATION
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
______________________
CHAIRPERSON
| CASE ID | AC97-11475 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 19981209 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | (GRANT) |
| REVIEW AUTHORITY | |
| ISSUES 1. | 137.03 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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