IN THE CASE OF:	  

		BOARD DATE:	  	   7  April 2009

		DOCKET NUMBER:  AR20080012219 


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, disenrollment from the Reserve Component Survivor Benefit Plan (RCSBP)/Survivor Benefit Plan (SBP).  He also requests that all premiums that he has paid be refunded.

2.  The applicant states, in effect, he strongly believes that he was unjustly and wrongfully enrolled in the SBP in (February 2006), even though his application of (February 2004) stated that he was drawing Department of Veterans Affairs (VA) compensation at 100 percent at the time.  He states that he was never told by the Defense Finance and Accounting Service (DFAS) or his retirement section that his spouse could never receive SBP benefits because of his Dependency and Indemnity Compensation (DIC) offset.  In March 2006, DFAS stated that he could not disenroll for 2 years and that he had to pay the premiums until then, which he did.  In November 2007, DFAS said that he would receive a refund check by Christmas.  DFAS then said he would receive his refund check by July 2008 and finally DFAS said that he would not get his refund check until 2011.  He called the retirement services officer at Fort Knox Kentucky and they told him to go to the Appeals Board on the matter.  The applicant finally states that he expects to die from his disabilities (post-traumatic stress disorder (PTSD) and cancer) and he would like to have his SBP premiums refunded as soon as the matter is resolved because it is extremely stressful.  

3.  The applicant provides a 6-page document, a copy of his retired pay account, and a copy of an SBP Withdrawal Consent.  


CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he was born on 13 February 1946.  With prior enlisted service, he was appointed as a Reserve commissioned officer in the rank of second lieutenant on 6 June 1967.  His service was continuous and he attained the rank and pay grade of Lieutenant Colonel/pay grade 0-5. 

2.  On 10 February 1995, the US Army Reserve Personnel Center issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified the applicant that he had completed the required years of service and would be eligible for retired pay upon application at age 60.

3.  On 15 November 2005, the applicant completed a DD Form 2656-9 (SBP and RCSBP Open Enrollment Election).  On this form, he elected spouse only coverage, based on full gross pay, and option C (immediate annuity).  

4.  A Memorandum from the Transition and Separations Branch, St. Louis, Missouri, dated 30 November 2005, advised the applicant that his request for enrollment in the RCSBP, open season was returned without action.  The applicant was advised his application was returned because the DD Form 2656-9 was incomplete.  The witness did not sign the DD Form 2656-9.  

5.  On 13 February 2006, the applicant turned age 60 and was placed on the Retired Reserve list with 39 or more qualifying years of service for retirement.  

6.  A copy of the applicant's Summary of Retired Pay Account shows DFAS did not receive the applicant's SBP election certificate.  Therefore DFAS provided automatic SBP coverage, effective 13 February 2006, spouse only coverage with no supplemental.  

7.  A Memorandum from DFAS, Retired and Annuity Pay, dated 21 March 2006, advised the applicant that they could not process his SBP open enrollment election because it was missing a copy of his marriage certificate for V----- C- 
S-----.

8.  On 12 January 2008, the applicant submitted to DFAS-Cleveland Center an SBP Withdrawal Consent Form which states “I hereby give my consent for the Defense Finance and Accounting Service - Cleveland Center to request from the Department of Veterans Affairs information concerning his disability rating.  “After having reviewed the SBP withdrawal Fact Sheet on the advantages in participating in the Plan and the disadvantages in withdrawing from the Plan, I hereby request withdrawal from the Plan.”  The applicant's spouse also gave her consent for the withdrawal from the Plan.  DFAS terminated the applicant's SBP enrollment on 17 January 2008.

9.  On 14 November 2008, the VA Regional Office, Nashville, Tennessee, sent a letter to DFAS at the request of the applicant which stated the applicant’s VA record showed he received a 100 percent service connected disability rating for PTSD, effective 1 March 1997; and a 100 percent service connected disability rating for prostate cancer, effective 1 September 2006.  He was rated 100 percent service connected disabled, permanent, from 25 May 1999.     

10.  In the processing of this case, an official with DFAS provided information pertaining to the applicant's status.  The DFAS official stated that the applicant requested withdrawal from the SBP on 26 December 2007.  On 1 January 2008, DFAS terminated the applicant from the SBP.  On 17 January 2008, DFAS received the applicant's SBP Benefit Withdrawal Consent Form with spousal consent.  On 14 November 2008, the VA provided a letter which shows the applicant was 100 percent disabled.    

11.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Elections must be made prior to the effective date of retirement or coverage defaults to spouse coverage, full base amount (if applicable).

12.  Public Law-402, enacted 9 October 1980 but effective 1 December 1980, established a withdrawal clause for members rated totally disabled by the VA.

13.  Title 10 U.S. Code section 1452(g)(1) provides that a person who has elected to participate in the SBP and who is suffering from a service-connected disability rated by the VA as totally disabling and has suffered from such disability while so rated for a continuous period of 10 or more years (or, if so rated for a lesser period, has suffered from such disability while so rated for a continuous period of not less than 5 years from the date of last discharge) may discontinue participation in the Plan.  Discontinuance is effective on the first day of the first month following the month in which the request is received.  Participation may not be discontinued without the written consent of the beneficiary or beneficiaries of the person.     

14.  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.  

15.  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.  

16.  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.

17.  DIC was established by the Servicemen's and Veterans Survivor Benefits Act.  It was designed to provide indemnification to certain survivors of veterans.  It was also extended to certain veterans who were totally disabled as a result of service connected conditions.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that prior to his retirement from the Army Reserve the applicant attempted to enroll in the RCSBP during an open season in 2005, and his application was returned due to it being incomplete. 

2.  On 13 February 2006, DFAS automatically enrolled the applicant in the SBP for spouse only coverage upon reaching age 60 when DFAS failed to receive an SBP election from him. 

3.  However, the evidence also shows that the applicant has been rated by the VA as 100 percent disabled for PTSD since March 1997 and for prostate cancer since September 2006.  The fact he attempted to enroll in the RCSBP during an open season (which would have incurred an expensive buy-in cost) when only a few months later he could have enrolled in the standard SBP for a much less expensive cost indicates that his mental capacity may have been affected by his medical conditions.

4.  Since it appears likely that his spouse will never receive the SBP annuity due to her eligibility for DIC, and since his spouse recently gave her consent for him to withdraw from the SBP, it appears that as a matter of equity and compassion it would be appropriate to correct his records to show that he elected, with his spouse's consent, not to participate in the SBP.  This will allow the SBP premiums he paid into program to be refunded to him now, when he and his spouse could probably better utilize those monies.

BOARD VOTE:

____X____  ____X____  ___X_____  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 that he elected, with his spouse's consent, not to participate in the SBP prior to his reaching age 60, that his election was processed by the appropriate office in a timely manner, and that as a result of this correction he be refunded the SBP premiums he has paid into the program.




      _______ _   _X______   ___
               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)                                         AR20080012219



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ABCMR Record of Proceedings (cont)                                         AR20080012219



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