IN THE CASE OF:	  

		BOARD DATE:	  	  23 December 2008

		DOCKET NUMBER:  AR20080014463 


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, cancellation of his Survivor Benefit Plan (SBP) election.

2.  The applicant states, in effect, that he has tried for over 4 months to stop the SBP premiums from being deducted from his military retired pay because his military retired pay has been adjusted based on his receipt of disability pay from the Department of Veterans’ Affairs (VA).  He adds that there is no error in his military records, he just wants to cancel his SBP.

3.  The applicant provides no additional documentary evidence.

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’s military personnel records show he enlisted in the Regular Army and entered active duty on 22 December 1972.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 13E (Field Artillery Cannon Operations Fire Direct Assistant).
He attained the rank of Sergeant (SGT)/pay grade E-5, effective and with a date of rank of 17 November 1976.  The applicant was honorably separated from active duty on 24 April 1979 based on permanent physical disability and placed on the retired list effective 25 April 1979.

3.  The applicant’s military personnel records contain a DA Form 4240 (Data for Payment of Retired Army Personnel), dated 26 March 1979.  This document shows the applicant elected “Spouse and Dependent Children” coverage, based on the full amount of his military retired pay.  Part X (Information on Survivor’s Benefit Plan (SBP)) contains, in pertinent part, the statement, "IMPORTANT:  YOUR ELECTION IS PERMANENTLY IRREVOCABLE.”  This document also shows that the applicant and a witness signed the form on 26 March 1979.

4.  In the processing of this case, an official with the Defense Finance and Accounting Service (DFAS) provided information pertaining to the applicant's military retired pay and SBP election.  The DFAS official confirmed that the applicant’s monthly military retired pay is $576.00, less his VA disability pay of $568.00, leaving a remainder of $8.00 military retired pay.  The DFAS official also confirmed that the applicant’s monthly SBP premium is $14.79 and his monthly military retired pay of $8.00 is applied to the SBP premium, leaving a balance due of $6.79.  The DFAS official added that, as of 26 November 2008, the applicant had an SBP balance due of $62.28.  The DFAS official also indicated that the applicant could authorize the VA to pay the balance of his monthly SBP premium for him from his VA disability pay.

5.  Public Law 92-425, the Survivor Benefit Plan, 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.  

6.  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.  Members retired for more than two years as of 17 May 1998 were 


authorized a one-year opportunity (17 May 1998 through 16 May 1999) to disenroll.  The spouse’s concurrence is required.  No premiums will be refunded to those who opt to disenroll.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the SBP election he made on 26 March 1979 should be rescinded and his enrollment in the SBP cancelled because he no longer has sufficient military retired pay to pay the full cost of his monthly SBP premium.

2.  The evidence of record confirms that on 26 March 1979, in his application for retired pay, the applicant made his SBP election of spouse and children coverage based on the full amount of his military retired pay.  The evidence of record also shows that the applicant's monthly SBP premium is being deducted from his military retired pay.

3.  There is no evidence that shows the applicant terminated his SBP during the 17 May 1998 through 16 May 1998 period provided by law for termination.
 
4.  The evidence of record indicates that the applicant recently elected to receive tax-free disability pay from the Department of VA in lieu of a corresponding portion of his military retired pay.  Thus, the applicant’s monthly military retired pay was reduced to $8.00, while his monthly SBP premium remained at $14.79, leaving a monthly SBP premium balance due of $6.79.

5.  The evidence of record confirms that the applicant’s SBP election is correctly recorded in his military service records and the correct SBP premium is being deducted from his military retired pay by the DFAS.  Therefore, the applicant is not entitled to correction of his records to show that he rescinded his election to participate in the SBP.

6.  The applicant is advised that he may contact the VA if he is interested in authorizing the VA to pay the balance of his monthly SBP premium for him from his VA disability pay.

7.  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.




      _______ _   _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)                                         AR20080014463



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ABCMR Record of Proceedings (cont)                                         AR20080014463



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