IN THE CASE OF:	  

		BOARD DATE:	  12 June 2012

		DOCKET NUMBER:  AR20110020792 


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, correction of his record to show he declined Survivor Benefit Plan (SBP) coverage and cancellation of the SBP premium debt incurred.  

2.  The applicant states in March 1989, he was placed on the Temporary Disability Retirement List (TDRL), and in July 1992, he was permanently retired by reason of disability.  He states he is now rated 100 percent disabled by the Department of Veterans Affairs (VA) and based on the SBP/Dependency Indemnity Compensation (DIC) offset his spouse would receive no SBP annuity upon his death.  He states he has been trying to correct this situation since 2007 when he requested to end SBP which was not allowed until 2011, and resulted in an SBP premium debt being established by the Defense Finance and Accounting Service (DFAS).  He claims it is unjust that he not only had to pay for a benefit his spouse will not use, and in fact will be indebted for, but also this offset was not properly explained to him at the time he was placed on the TDRL in 1989.  

3.  The applicant provides the 28 attachments identified in the list provided with his application in support of this request.  

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.  On 20 March 1989, the applicant was honorably retired by reason of disability, and on 21 March 1989 he was placed on the TDRL.  The applicant was in an unemployable status with the VA from 21 March 1989 through 6 July 1990.  On 12 September 1990, the applicant was assigned a 90 percent disability rating for service connected conditions and on 6 July 1992 this combined rating was increased to 100 percent.  He was permanently retired by reason of disability on 28 July 1992.  

3.  The record shows at the time of retirement he elected spouse and child SBP coverage.  

4.  On 12 September 1994, the applicant’s SBP spouse coverage was suspended based on his divorce and he elected to discontinue spouse coverage and elected to continue child only coverage.  

5.  On 28 February 2005, the applicant notified DFAS that he had remarried on 28 October 1999, and informed DFAS he did not wish to cover his post retirement spouse.  

6.  On 1 April 2005, DFAS changed the applicant's SBP coverage to spouse and child retroactive to 28 October 2000. 

7.  On 9 September 2011, DFAS received a completed DFAS-CL-1741/117 (SBP Withdrawal Consent Form) signed by the applicant and his spouse on 1 October 2007, and DFAS approved the applicant’s withdrawal from the SBP on 1 October 2011, the first day of the month following the month in which DFAS received the withdrawal request.  

8.  On 28 September 2011, DFAS issued the applicant an SBP Premium Bill in the amount of $7,764.82 for SBP premiums due from October 1989.

9.  Title 10 of the U.S. Code, Section 1448(a)(6) provides guidance on election out of the plan by a person with spouse coverage who remarries.  It states as a general rule, a person who is participating in the plan and is providing coverage under the plan for a spouse (or spouse and child) who does not have an eligible spouse beneficiary and who remarries may elect not to provide coverage under the plan for the person's spouse.  

10.  Title 10 of the U.S. Code, Section 1452(g) provides the legal authority to discontinue participation in the SBP for members whose surviving spouses will be entitled to DIC.  It states a person who has elected to participate in the Plan and who is suffering from a service-connected disability rated by the Secretary of 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 such person’s last discharge or release from active duty) may discontinue participation in the plan by submitting to the Secretary concerned a request to discontinue participation in the plan.  Upon the death of the member who discontinued participation in the plan in accordance with this subsection, any amount deducted from the retired pay of that person under this section shall be refunded to the person’s surviving spouse. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to correct the record to show he declined SBP coverage and cancel the SBP premium debt has been carefully considered and found to have partial merit.  

2.  By law, members participating in the SBP who are suffering from a service connected disability rated by the VA as totally disabling and whose surviving spouse would be eligible for DIC, who has suffered from the 100 percent disabling condition for a continuous period of 10 or more years may discontinue participation in SBP.  In addition, a person participating in the plan with no eligible spouse who remarries may elect not to provide coverage under the plan for the person's spouse.  

3.  The evidence of record confirms the applicant made a valid spouse and children SBP election upon his initial retirement for disability in 1989, and that the spouse portion of the coverage was suspended in September 1994 leaving child only coverage in place.  As a result, it would be appropriate to correct his record to show he opted out of spouse coverage on 28 October 1999 upon remarriage, leaving only children coverage in place.  Further, he should be reimbursed all spouse-related premiums from October 1999 through the present leaving him responsible for only children premiums through the date his youngest child loses eligibility.



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’s request to withdraw from the spouse portion of SBP was approved on 28 October 1999; and

   b.  reimbursing him any portion of SBP related to spouse coverage from that date leaving him responsible for only children premiums through the date his youngest child loses eligibility.  

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 earlier withdrawal from the SBP or reimbursement of premiums due for any period prior to October 1999 or for any premiums related to children coverage as long as there was an eligible child.  



      ___________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)                                         AR20110020792



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ABCMR Record of Proceedings (cont)                                         AR20110020792



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