IN THE CASE OF:	 

		BOARD DATE:	  12 January 2010

		DOCKET NUMBER:  AR20090004777 


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 that the remainder of his overcharge of payments under the Survivor Benefit Plan (SBP) be refunded to him with interest.

2.  The applicant states that through no fault of his, he was overcharged from the date of his first withholding.  He believes he should be entitled to the full amount erroneously withheld, not just 6 years' worth.  He also believes he should receive interest on the monies withheld.

3.  The applicant provides copies of a letter to the Army SBP Administrative Board and their reply, two Defense Finance and Accounting Service (DFAS) letters, and a DD Form 2656 (Survivor Benefit Plan Election Change Certificate).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 10 December 1984 and served honorably until 16 December 1997 when he was placed on the Temporary Disability Retired List (TDRL).  

2.  At the time the applicant was placed on the TDRL he was divorced but listed three children as dependents.  He completed a DD Form 2656 on 13 November 1997 requesting full SBP coverage for his three children:  F____, born 1 October 1981; C____, born 31 October 1981; and M____, born 22 April 1988.  A copy of this form was provided by DFAS.

3.  The applicant remarried around November 2007 and requested that his wife be added to his SBP coverage.

4.  On 31 March 2008, DFAS notified the applicant of two adjustments to his account.  First his "auto (spouse)" was changed to "child only" effective 1 January 1998, which resulted in a reduction in the cost of the SBP and generated an overcharge.  It also stated that, due to the 6-year barring statute, it was only authorized to repay him for the erroneous overcharge back 6 years (to February 2002).  It advised him to apply to the Army SBP Administrative Board if he believed that he was entitled to the entire amount.  The second change was from "child only" to "spouse and child" effective 1 December 2008.

5.  In a second letter, also dated 31 March 2008, DFAS provided him a copy of the audit of his account based on the above changes.  It shows that he was entitled to a reimbursement for SBP overcharges.  He had been charged at a rate for "spouse and child," not "child only," since the onset of his election.  The error resulted in an overcharge.  He was being refunded a portion of the overcharge in the amount of $3,173.54.  The audit only shows calculations back to February 2002.

6.  On 6 April 2008 and again 11 November 2008, the applicant requested that the Army SBP Administrative Board review his request for full repayment of the monies erroneously withheld.

7.  On 13 January 2009, the Army SBP Administrative Board advised the applicant that due to the 6-year barring statute he would have to apply to the Army Board for Correction of Military Records for a correction of his records.

8.  Public Law 92-425, 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.  It required a 2-year waiting period for new spouse eligibility following post-retirement marriage.  Public Law 94-496, enacted 14 October 1976, reduced this waiting period to 1 year following post-retirement marriage.

9.  Title 31, U.S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the government unless the claim has been received by the Comptroller General within 6 years after the claim accrues.  Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U.S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove.  
DISCUSSION AND CONCLUSIONS:

1.  Through no fault of the applicant, he was overcharged SBP withholding from the date of his child-only SBP election on 13 November 1997 until he requested his new wife be added to the SBP coverage around November 2007.

2.  One of the reasons behind the barring statute is not valid in this case (i.e., relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove). The applicable records were and are readily accessible and the error in the applicant's case is not difficult to prove.  However, because of the barring statute DFAS has only reimbursed the applicant overpaid premiums for the past 6 years from the date of discovery (back to February 2002).

3.  It would be equitable to correct the applicant’s records to show he discovered the error in January 1998, when he should have received his first retiree account statement, that he notified the appropriate finance office at that time of the error in SBP premium deductions, and that the appropriate office processed his request for correction of the SBP premium deductions in a timely manner.

4.  With this action the applicant is entitled to full reimbursement of the overcharge of SBP payments retroactive to his first contribution in 1997.

5.  Unless contractually required, there is no provision in law or regulation that would allow a claim for interest to be paid for any monies due a person by the government to include, but not limited to, a reimbursement of an overcharge for SBP benefits.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X___  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
	a.  showing he discovered the SBP error in January 1998, that he notified the appropriate finance office at that time of the error in SBP premium deductions, and that the appropriate office processed his request for correction of the SBP premium deductions in a timely manner; and

	b.  reimbursing the applicant the overpayment of SBP premium deductions retroactive to his first contribution.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to payment of interest on the overcharge.



      ___________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)                                         AR20090004777



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ABCMR Record of Proceedings (cont)                                         AR20090004777



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