RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           11 August 2005
      DOCKET NUMBER:  AR20050008088


      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 L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Ms. Deborah S. Jacobs             |     |Member               |
|     |Mr. Michael J. Flynn              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his records be corrected to
show he declined Survivor Benefit Plan (SBP) coverage.

2.  The applicant states the Army Board for Correction of Military Records
(ABCMR) corrected his records to show he was retired for physical
disability in 1975.  The Defense Finance and Accounting Service (DFAS)
then, in effect, established a debt to collect back SBP premiums.  His
spouse will get more in Department of Veterans Affairs (DVA) Dependency and
Indemnity Compensation (DIC) than in SBP should he die.

3.  The applicant provides his retirement orders; his Retiree Account
Statement dated 2 December 2004; an SBP Withdrawal Consent Form; an extract
from the Disabled American Veterans Magazine; his latest marriage
certificate; a divorce decree dated 1987; and a divorce decree dated 1992.

CONSIDERATION OF EVIDENCE:

1.  The applicant was inducted into the Army on 18 September 1964.  On
      5 August 1973, he was promoted to Sergeant First Class, E-7.  On 21
October 1975, he was discharged for the good of the service in lieu of
trial by court-martial.  He was married at that time.

2.  On 27 January 1989, the Department of Veterans Affairs found the
applicant to be 100 percent disabled due to post-traumatic stress disorder.

3.  The applicant divorced and remarried twice.  He last remarried on
          27 September 2002.  On 19 December 2003, his spouse provided her
consent for the applicant to withdraw from the SBP.

4.  On 16 December 2003, in Docket Number AR2002076652, the ABCMR corrected
the applicant's records to show he was placed on the Permanent Disability
Retired List on 22 October 1975.

5.  The applicant's Retiree Account Statement dated 2 December 2004 shows
his spouse would receive a maximum SBP annuity of $414.53.

6.  The applicant provided an extract from the Disabled American Veterans
Magazine which shows the survivor of a deceased E-7 would receive DIC in
the amount of $1,027.00.

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.  The
election had to be made prior to the effective date of retirement.  Failure
to make an election resulted in automatic spouse coverage, full base
amount.

8.  Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986,
required a spouse’s written concurrence for a retiring member’s election
that provides less than the maximum spouse coverage.

9.  The Department of Veterans Affairs booklet, Federal Benefits for
Veterans and Dependents, 2002 edition states DIC payments may be available
for surviving spouses of deceased service members or veterans who have not
remarried.  To be eligible, the deceased must have died from (1) a disease
or injury incurred or aggravated while on active duty or active duty for
training; (2) an injury incurred or aggravated in line of duty while on
inactive duty training; or (3) a disability compensable by VA.

10.  DIC also may be authorized for survivors of veterans who at the time
of death were determined to be totally disabled as a result of military
service, even though their service-connected disabilities did not cause
their deaths.  One criterion is the veteran was continuously rated totally
disabled for a period of 10 or more years immediately preceding death.

11.  Title 10, U. S. Code, section 1450(e)(1) provides that, if an SBP
annuity is not payable because the DIC payment is greater, then any amount
deducted from the retired pay of the deceased member shall be refunded to
the surviving spouse or former spouse.

12.  Title 10, U. S. Code, section 1450(c) requires an SBP offset for the
amount of DIC paid.  Section 1450(c)(1) states if, upon the death of a
member participating in the SBP, the surviving spouse or former spouse is
also entitled to DIC, the surviving spouse or former spouse may be paid an
SBP annuity but only in the amount the annuity otherwise payable would
exceed that compensation.

DISCUSSION AND CONCLUSIONS:

1.  Because the ABCMR took action in 2003 to retire the applicant effective
1975, it was impossible for him to have made an SBP election prior to the
effective date of his retirement.  However, the correction resulted in DFAS
establishing SBP for him based on his failure to decline to participate in
the SBP in a timely manner and establishing a debt to pay for that SBP.

2.  Should the applicant die, his spouse would be eligible to receive an
SBP annuity in the approximate amount of $414; however, she would be
entitled to DIC in the approximate amount of $1,027.  Because DIC would be
greater than the SBP annuity, she could not receive the SBP annuity.  Any
SBP amount deducted from the applicant's retired pay or otherwise collected
from him would be refunded to his spouse.  The applicant should not be
burdened with the debt when it appears his spouse would not receive the SBP
annuity.

BOARD VOTE:

__jns___  __dsj___  __mjf___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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
showing he declined to participate in the SBP prior to his physical
disability retirement of 22 October 1975.




            ___John N. Slone______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050008088                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050811                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |137.03                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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