RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 20 March 2007
DOCKET NUMBER: AR20060008830
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. Gerard W. Schwartz
Acting Director
Mr. W. W. Osborn, Jr.
Analyst
The following members, a quorum, were present:
Ms. Kathleen A. Newman
Chairperson
Mr. David K. Haasenritter
Member
Ms. LaVerne M. Douglas
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 that the effective date of the refund of Survivor Benefit Plan (SBP) premium be established as 1 May 1996 instead of 1 December 1967.
2. The applicant states, in effect, that he notified the Defense Finance and Accounting Service (DFAS) after he learned about the uncontested divorce. He was in the Veterans Hospital at the time. His wife left and he did not know where she had gone. He did not even know that Georgia had an uncontested divorce law.
3. The applicant provides a copy of a 2 March 2004 letter from the DFAS.
CONSIDERATION OF EVIDENCE:
1. The applicant retired from the Regular Army, due to length of service, on
31 October 1992. He was a staff sergeant (E6) with exactly 20 years of active duty service.
2. He indicated on his DA Form 4240 (Data for Payment of Retired Army Personnel) that he desired SBP coverage for spouse and dependent children and named his then spouse and two children.
3. The 2 March 2004 letter from the DFAS indicates that his SBP election was changed to children only, effective 3 April 1996. However, due to the 6-year barring statute, the premium refund did not start until 1 December 1997 (six years before his request for change was actually received by the DFAS, which was apparently sometime in November or December 2003).
4. Title 31, United States Code, section 3702, also known as the Barring Act, 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.
DISCUSSION AND CONCLUSIONS:
1. The DFAS action demonstrates that documentation provided was sufficient to show that the events occurred as described by the applicant. He was divorced and the SBP spouse coverage terminated effective 3 April 1996.
2. While the DFAS was required to apply the 6-year barring statute, the result is inequitable, because the applicants former spouse would not have been eligible to receive the SBP benefit after the date of the divorce. The applicant paid the cost for a benefit that would never have been paid. As a result, the difference in premiums constitutes a windfall in favor of the government.
3. The applicants records should be corrected to show that notification of the divorce was received on 3 April 1996 and the resultant overpayment of SBP premiums should be refunded to him. His request for 1 May 1996 demonstrates that the applicant is aware that any change in pay would become effective on the first of the month following receipt of his request for change in SBP coverage.
BOARD VOTE:
__DKH__ __LMD __ __KAN__ 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:
a. showing that DFAS received his request for change of SBP beneficiaries on 3 April 1996; and
b. refunding to him the remaining SBP spouse premiums previously deducted from his retired pay from 1 May 1996 through 30 November 1997.
__ Kathleen A. Newman___
CHAIRPERSON
INDEX
CASE ID
AR20060008830
SUFFIX
RECON
DATE BOARDED
20070320
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
. . . . .
DISCHARGE REASON
BOARD DECISION
GRANT
REVIEW AUTHORITY
ISSUES 1.
137
2.
3.
4.
5.
6.
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