IN THE CASE OF:	  

		BOARD DATE:	        21 OCTOBER 2008

		DOCKET NUMBER:  AR20080011316 


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 Survivor Benefit Plan (SBP) premium indebtedness in the amount of $20,224.52 be cancelled or remitted or that he be granted a waiver for the premiums, due to an error made by the government.  

2.  The applicant states that he signed an authorization for the Army to deduct premiums each month for the SBP in 1992 and the Department of Veterans Affairs (VA) stopped remitting his SBP premiums in error.  However, he knows that his SBP is current and the Defense Finance and Accounting Service (DFAS) has made an error.  He also states that he was unaware that his SBP costs were not remitted.

3.  The applicant provides copies of his enlistment contracts, DD Forms 214, his disability separation processing documents, and correspondence that was written between him and DFAS.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted on 11 February 1975.  He successfully completed his training as a medical laboratory specialist and remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-6 on 2 October 1981.

3.  On 21 April 1992, a Physical Evaluation Board (PEB) convened at Fort Gordon, Georgia and determined that the applicant was unfit for duty due to Chronic Glomerulonephritis and recommended that he be assigned a 100% disability rating.  The findings and recommendation were approved on 8 May 1992 and the applicant concurred and waived his right to a formal hearing. 

4.  On 27 July 1992, the applicant elected FULL SBP coverage for spouse and children.  He indicated at the time that he would mail in the Direct Deposit Form. 

5.  On 28 July 1992, he was honorably retired by reason of physical disability.  He had served 17 years, 5 months and 18 days of total active service. 

6.  On 24 March 1993, the applicant authorized the VA to pay his SBP premiums from his VA Compensation or pension by providing that agency with a Direct Deposit Sign-Up Form.

7.  On 1 August 1996, the applicant went back to Pay Active and the VA stopped submitting his premiums because he was no longer getting his pay from VA sources.

8.  The applicant went back to full VA compensation on 1 May 1997; however, there is no evidence to show that he ever re-started his payment of SBP premiums.

9.  In October 2001, the DFAS notified the applicant that his SBP account was $6,282.76 in arrears.

10.  On 24 October 2001, the applicant dispatched a letter to the DFAS informing the DFAS that he disagreed that his premiums were not paid because he had authorized the VA to pay the premiums from his VA Disability compensation since 2 March 1993.  

11. On 13 December 2001, the DFAS, Cleveland, Ohio notified the applicant that the VA had stopped remitting his SBP cost when he went pay active on 1 August 1996 and as of 13 December 2001, his account had a balance of $6,469.16 in premiums owed.  The VA provided the applicant with a month by month schedule of his account.

12.  On 31 January 2008, the applicant dispatched a letter to the DFAS requesting a waiver of his SBP debt in the amount of $19,506.48.  He contended that his premiums were paid and were current and noted that he was permanently and totally disabled and was unable to work.  He again provided a copy of the Direct Deposit Form, dated in 1993, which authorized the VA to submit his SBP premiums. 

13.  On 17 May 2008, the DFAS again notified the applicant that his account was in arrears.  However, the amount had then risen to $20,229.52.  As of 8 August 2008, he owes $21,091.22.  His monthly interest cost is $101.60 and his SBP cost is $128.11.

14.  Public Law 92-245, Title 10, United States Code, Section 1453, authorizes waiver of erroneously paid annuity payments.  In his implementing instructions, the Comptroller General ruled that only erroneous payments can be considered for waiver.  An erroneous payment is defined as a payment that was received but should not have been received.

15.  Department of Defense (DOD) Financial Management Regulation, Chapter 31, Volume 5, permits the Secretary of Defense the authority to waive or compromise a debt.  However, any such action would be a DOD level action and therefore not a record the Board could create/correct.  In other words, an appeal to the DFAS constitutes an appeal to the DOD and in the applicant’s case was not favorably considered.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his SBP premium debt should be waived because of a clear and unmistakable error on the part of the DFAS has been noted and found to lack merit.

2.  At the time the applicant was retired by reason of physical disability in 1992, he authorized the DFAS to pay his SBP premiums out of his Retired Pay account.  When he changed over to the VA for his pay in 1993, he authorized the VA to pay his premiums.   

3.  However, on 1 August 1996, the applicant again elected to go pay active and began receiving his pay from the DFAS.  However, he did not submit a new authorization for automatic deductions from his Army pay account for SBP premiums and thus his SBP premiums were not paid from that date because the VA stopped making his payments when he was no longer receiving compensation from that agency.  

4.  On 1 May 1997, he again reverted to VA Disability Compensation; however, he did not authorize the VA to remit payment for his SBP premiums when he again began to receive his pay from that agency.

5.  Accordingly, the applicant’s debt for SBP premiums has continued to accumulate with interest since 1996 due to non-payment of premiums.

6.  The applicant’s contention that he authorized the VA to pay his premiums and that his premiums have been paid and that an error by the DFAS has caused the debt has been noted and found to lack merit.

7.  While the applicant has provided evidence to show that he submitted the appropriate forms when he first began drawing his Retired Pay from the Army and when he changed over to the VA, he has failed to show that he properly authorized the DFAS and the VA to make such payments when he made subsequent changes in where he was receiving his compensation.  Every time he changed from one source to another, he was required to submit the necessary forms to authorize the automatic deductions from his pay and he has failed to submit such evidence.

8.  It is clear that the applicant wishes to have the maximum SBP coverage for his spouse; however, it is equally clear that he wishes to do so without having to pay the required SBP premiums that he agreed to when he elected full SBP coverage at the time of his retirement.  

9.  The applicant has not paid his premiums since 1 August 1996 and despite being notified by the DFAS that his account was in arrears, he has continued to allow the debt to accumulate to its present amount. 

10.  The applicant’s contention that his premiums have been paid has been noted; however, he has failed to show through the evidence of record and the evidence submitted with his application that such was the case.  Therefore, in the absence of evidence to show that his premiums were paid and that they were not properly credited to his account, there appears to be no evidence of error or injustice in this case.  To do so would amount to a windfall that is not afforded to others in similar circumstances.

11.  The applicant's contentions were carefully considered, as was the evidence he provided.  However, in order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.
   
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X____  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.




      _______ _XXX_______   ___
               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)                                         AR20080011316



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ABCMR Record of Proceedings (cont)                                         AR20080011316



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