RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 July 2007
      DOCKET NUMBER:  AR20070000958


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Jeanette R. McCants           |     |Chairperson          |
|     |Mr. Thomas M. Ray                 |     |Member               |
|     |Mr. Jeffrey C. Redmann            |     |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 relief from the $460.00 payments and interest he
is paying due to his election of Survivor Benefit Plan (SBP) spouse
coverage during the recent Open Season.

2.  The applicant states he elected spouse and child SBP coverage prior to
his retirement.  In August 2002, he contacted the Defense Finance and
Accounting Service (DFAS) because he only saw child SBP costs being
deducted.  He was informed he had to wait until the next Open Season to
correct the problem.  He enrolled during the next Open Season, and then he
was told he owed back payments to cover the time from his retirement until
now.  When he called in December [2006] to ask for relief from the $460.00
payments and interest, he was told that even though DFAS made a mistake
there was nothing [to be done]. Now he is paying for a mistake he did not
make, he is being charged interest, and he cannot die for the next two
years or his spouse gets nothing.

3.  The applicant provides his DD Form 2656 (Data for Payment of Retired
Personnel) and a Statement of Spousal Concurrence.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 1 April 1982.

2.  On 13 December 2001, the applicant completed a DD Form 2656 and
indicated that he elected to participate in the SBP for spouse and child
coverage, full base amount.

3.  The applicant retired on 1 April 2002.  Apparently, DFAS did not begin
to deduct spouse SBP costs until 1 June 2006, after telling the applicant
he had to enroll for spouse coverage during the October 2005 through
September 2006 Open Season.

4.  On 9 July 2007, DFAS informed the Board analyst that the applicant’s
pay account was not changed to reflect spouse and child SBP coverage until
June 2006.  He is therefore paying back costs in the amount of $4,305.56
for the period 1 April 2002 through 31 May 2006.  DFAS stated he is not
paying Open Season costs.

5.  Public Law 92-425, enacted 21 September 1972, established the SBP.  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 election to participate in the SBP must be made prior to
the effective date of retirement.

6.  The National Defense Authorization Act for Fiscal Year 2005 established
an Open Season to be conducted 1 October 2005 to 30 September 2006.  It
required that enrollees live two years from the effective date of election
for beneficiaries to be eligible for an annuity.  The retiree must pay
monthly premiums starting on the date of enrollment and a buy-in premium
covering all the costs that would have been paid for the election if it had
been made at the first opportunity to do so.

DISCUSSION AND CONCLUSIONS:

1.  An error was made by DFAS when it failed to deduct spouse and child SBP
costs immediately upon the applicant’s retirement.  It appears he was then
given erroneous information that he had to wait for an Open Season in order
to enroll his spouse in the SBP.

2.  However, DFAS has indicated that the applicant is not paying the
additional costs associated with an Open Season enrollment.  He is only
paying the spouse costs that would have been paid during the period 1 April
2002 to 31 May 2006.  Had he died during that period, his spouse would have
been entitled to the SBP annuity based upon his December 2001 election of
spouse and child SBP coverage (with unpaid costs taken from the annuity).
In addition, he is not held to the Open Season two-year survivability rule.

3.  There is no injustice or inequity in requiring the applicant to pay for
SBP costs that would have been due had DFAS processed his SBP election
correctly in the first place and that would not have deprived his spouse of
SBP benefits had he died during the period SBP costs were not being
deducted from his retired pay.  Unless the applicant has evidence to show
he is being charged Open Season costs instead of ordinary back SBP costs,
contrary to DFAS’s 9 July 2007 assertion, there is insufficient evidence to
grant the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jrm___  __tmr___  __jcr___  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




                                  __Jeanette R. McCants_
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070000958                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070731                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |128.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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