IN THE CASE OF:	  

	BOARD DATE:	  8 July 2008

	DOCKET NUMBER:  AR20080002142 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his participation in the Survivor Benefit Plan (SBP) be cancelled.

2.  The applicant states that he has been approved for Social Security and Department of Veterans Affairs (VA) benefits.  He understands that if he dies the SBP benefit will be waived because his other income for his family will be higher than the SBP amount.  At the time he signed the SBP form, he had not been approved for Social Security or VA benefits.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U. S. Army Reserve on 16 January 1998.  He was ordered to active duty on 7 November 2005.

2.  On 26 September 2006, the applicant was released from active duty and placed on the Temporary Disability Retired List on 27 September 2006.  His Physical Evaluation Board proceedings are not available.

3.  The applicant had elected to enroll in the SBP for spouse and children coverage, reduced base amount ($1,000).


4.  Public Law 92-425, the SBP, enacted 21 September 1972, established the SBP.  It provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Elections are made by category, not by name.  An election, once made, is permanent and irrevocable except as provided for by law. 

5.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from SBP.  The spouse’s concurrence is required.  No premiums will be refunded to those who opt to disenroll.  The effective date of termination is the first day of the first calendar month following the month in which the election is received by the Secretary concerned.

6.  The Department of Veterans Affairs (VA) booklet, Federal Benefits for Veterans and Dependents, states that Dependency and Indemnity Compensation (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.

7.  Title 10, U. S. Code, section 1450(c) requires an SBP offset for the amount of DIC paid.  Section 1450(c)(1) states that 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 that the annuity otherwise payable would exceed that compensation.  

8.  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.  

9.  Title 10, U. S. Code, section 1450(k)(1) states that, if a surviving spouse or former spouse whose annuity has been adjusted under subsection (c) subsequently loses entitlement to DIC because of remarriage of the spouse or former spouse, and if at the time of such remarriage the surviving spouse or former spouse is 55 years of age or more, the amount of the annuity of the surviving spouse or former spouse shall be readjusted, effective on the effective date of such loss of DIC, to the amount of the annuity which would be in effect with respect to the surviving spouse of former spouse if the adjustment under 

subsection (c) had never been made.  Subsection 1450(k)(2) states a surviving spouse or former spouse whose annuity is readjusted shall repay any amount refunded by reason of the adjustment.

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged that the applicant is currently drawing Social Security and VA benefits.  However, as he acknowledges, at the time he elected to participate in the SBP he had not been approved for those benefits.  Had he died before those benefits were approved, the SBP would have provided financial security for his family.

2.  The applicant retired on 26 September 2006 and started drawing retired pay on 1 October 2006.  Effective 1 October 2008, he will have a one-year opportunity to withdraw from the SBP.  He is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately so as to be prepared to submit his request to the Defense Finance and Accounting Service in October 2008.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.

3.  Before the applicant submits a request to terminate his SBP he is reminded of the laws/policies applicable to the DIC/SBP:  

     a.  DIC would be paid by the VA to his widow only if he dies 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.  Should the applicant die in an automobile accident, his widow would not be eligible for DIC.

     b.  It is true that the law requires an SBP offset for the amount of DIC paid.  However, any SBP premiums paid by the applicant would not be a total “loss” should his widow become eligible for DIC payments.  Any amount deducted from the retired pay of the applicant would be refunded to his surviving spouse (or former spouse).

     c.  The medical conditions that led to the applicant being placed on the TDRL are not known.  However, if he should be removed from the TDRL, and not permanently retired for disability, his SBP would be automatically cancelled.

4.  The applicant should discuss these issues with an RSO before making a final decision about terminating his SBP.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xx____  ____xx__  ____xx__  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.




 _    ____xxxx  _____________
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080002142





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ABCMR Record of Proceedings (cont)                                         AR20080002142



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