IN THE CASE OF:
BOARD DATE: 24 May 2012
DOCKET NUMBER: AR20110021515
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 her military records be corrected by canceling her Survivor Benefit Plan (SBP) election for spouse and children coverage.
2. The applicant states:
* She is receiving bills for over $2,000.00 that she doesn't owe
* She did not request SBP coverage for her surviving spouse
* She sent a fax/letter to the Defense Finance and Accounting Service (DFAS) stating she never asked for this coverage
* Her husband was not aware of requesting it
* She was not aware she was being charged for the premium
* DFAS informed her they took out monthly premiums from her retired pay when she was in the Army but when the Department of Veterans Affairs took over her compensation DFAS no longer took out the monthly payment but charged her anyway
* She declines this coverage and wants a refund of any money owed to her
3. The applicant provides:
* Letter, dated 17 October 2011, she wrote to DFAS
* Various forms of identification
* DFAS SBP/RSFPP (Retired Serviceman's Family Protection Plan) Premium Bill
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 20 May 1998. She trained as an administrative specialist. On 4 April 2003, she was retired with a 30 percent disability rating and placed on the Temporary Disability Retired List the following day.
3. The available records do not contain a DD Form 2656 (Data for Payment of Retired Personnel).
4. DFAS records show:
* they never received an SBP election from the applicant
* her current SBP election is automatic with full spouse and children coverage, the default election when a valid election is not received
* she has a full VA waiver which means that she is not receiving pay from DFAS and must remit SBP payments to DFAS herself
* she is being charged monthly
* to date she has made no payments
5. She provided a bill from DFAS, dated October 2011, which states she owes $2,965.84 for SBP costs as of that date.
6. 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.
7. Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse's written concurrence for a retiring member's election that provides less than the maximum spouse coverage.
DISCUSSION AND CONCLUSIONS:
1. It appears the applicant was automatically enrolled in the SBP for spouse and children coverage since she did not make an SBP election prior to her retirement in 2003. However, she should have been receiving a retiree account statement from DFAS at least annually, and at least until the Department of Veterans Affairs took over her compensation, which would have indicated SBP premiums were being deducted from her retired pay.
2. The applicant's contentions were carefully considered. However, there is an insufficient basis for granting her request.
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) AR20110021515
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ABCMR Record of Proceedings (cont) AR20110021515
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