IN THE CASE OF:	  

		BOARD DATE:	  21 September 2011

		DOCKET NUMBER:  AR20110001295 


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 correction of his military records to show that he declined enrollment in the Survivor Benefit Plan (SBP).  He further requests reimbursement of monies spent on civilian health insurance premiums and
co-pays. 

2.  The applicant states, in effect, he did not fully understand that he would not be receiving Army retired pay and he would immediately be responsible for SBP premiums.  He is indebted to the Government for SBP premiums in the amount of $4,000.00 for 2003 through 2009.  He is declining SBP because of the financial burden it is causing him and his family.

3.  The applicant further states that he was discharged in 2003 due to a medical disability, and he was not eligible for TRICARE coverage.  As a result, he had to purchase more expensive medical insurance and incurred co-pay expenses that he would not have incurred with TRICARE.  However, his medical retirement was approved 2010; therefore, he believes an injustice has occurred. 

4.  The applicant provides copies of a letter from Blue Cross/Blue Shield, a notarized statement from his spouse declining SBP coverage, retirement orders, a letter from the Department of Veterans Affairs (VA), and his retired identification card. 




CONSIDERATION OF EVIDENCE:

1.  On 1 October 2003, the applicant was discharged from the Regular Army due to physical disability.  He had attained the rank of staff sergeant, pay grade E-6, and had completed 15 years, 10 months, and 20 days of creditable active service.  He was awarded severance pay in the amount of $63,914.00.

2.  On 14 January 2010, the Deputy Assistant Secretary of the Army (Review Boards):

	a.  approved the Department of Defense Physical Disability Board's 
(DOD PDBR) recommendation to change the characterization of the applicant's discharge to a retirement due to physical disability with a combined disability rating of 30 percent and with no change in the effective date of his original discharge for physical disability;

	b.  directed that the individual be afforded the opportunity to elect SBP and medical TRICARE retiree options; 

	c.  informed the applicant by separate correspondence of this action and advised him that he would receive retired pay from the date of his original discharge, minus the amount of severance pay he was previously paid; and

	d.  informed the applicant that the VA had been provided a copy of this decision. 

3.  Defense Finance and Accounting Service (DFAS) records show that:

	a.  on 5 April 2010, the applicant completed and signed a DD Form 2656 (Data for Payment of Retired Personnel);

	b.  he elected SBP coverage for spouse and children based on his full gross retired pay; and

	c.  the Retirement Services Officer, Fort Eustis, Virginia, and one other person signed the form as witnesses to the applicant's election.

4.  In a memorandum, dated 7 April 2010, the Chief, Army Retirement Services, Office of the Deputy Chief of Staff, G-1[Personnel Officer], Washington, D.C., informed DFAS that:

	a.  the applicant had corrected his SBP election from "automatic" [spouse only coverage] to "spouse and children" based on full gross retired pay, retroactive to 2 October 2003; and

	b.  the applicant was responsible for the premiums for the elected coverage.

5.  The applicant provides a letter from the VA, date stamped 18 March 2009, indicating that his disability compensation was increased to 80 percent effective 
1 December 2008.  This letter also provides the future dates when his children will lose their VA benefit.

6.  The applicant provides a notarized statement dated 10 January 2011 indicating his spouse declines to participate in the SBP, due to the financial burden it will cause their family. 

7.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  The election must be made before the effective date of retirement or else coverage defaults to automatic spouse coverage.  

8.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) sets forth policy and procedures to be followed by the Board.  It provides that the ABCMR operates pursuant to law within the Office of the Secretary of the Army. The Board considers individual applications that are properly brought before it.  In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he declined enrollment in the SBP.  He further implies that he should be reimbursed monies spent on civilian health insurance premiums and co-pays.

2.  The evidence of record clearly shows the applicant was granted a retroactive retirement based on his physical disability.  Furthermore, it appears that he was automatically enrolled in the SBP.  Upon receipt of the applicant's DA Form 2656, the coverage was expanded from spouse only to spouse and children coverage.

3.  Subsequently, he was informed of the cost to include a debt in the amount of $4,000.00 prior years of coverage.  Consequently, he now desires to decline his coverage based on the financial burden.

4.  While there is no apparent error or injustice in what the U.S. Army has done; it is reasonable to presume that the applicant may not have been completely aware of his responsibility for the retroactive premiums for the SBP.

5.  As a matter of equity, the applicant's records should be corrected to show he and his spouse declined to participate in the SBP.  Accordingly, the associated debt to the U.S. Government should now be cancelled.  Any payments made by the applicant towards this debt should be refunded.

6.  The regulation governing the operation of this Board limits its authority to correcting U.S. Army records to rectify an error or injustice.  Accordingly, this Board can offer no effective relief concerning the expenses the applicant incurred in providing civilian health insurance for his family.

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 the applicant and his spouse declined to participate in the SBP;

	b.  cancelling the applicant's debt to the U.S. Government that resulted from enrollment in the SBP; and

	c.  refunding all payments he may have made towards this debt.







2.  The Board further determined that the evidence presented was 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 reimbursement of monies the applicant spent towards civilian heath insurance.




      _______ _   __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)                                         AR20110001295



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ABCMR Record of Proceedings (cont)                                         AR20110001295



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