IN THE CASE OF:
BOARD DATE: 24 May 2012
DOCKET NUMBER: AR20110021582
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 coverage.
2. The applicant states:
* The Defense Finance and Accounting Service (DFAS) form states she is Regular Army and receiving retired pay but she is U.S. Army Reserve (USAR) and will not receive retired pay until 2019 when she reaches age 60
* DFAS is requesting payments from her at $52.73 a month plus 6% interest, she owes over $3,000.00 so far
* She never requested or authorized the SBP/RSFPP (Retired Serviceman's Family Protection Plan) coverage
* She and her spouse never signed any form and there is no form showing that they requested SBP/RSFPP
* DFAS is requesting she pay them back for retirement money she never received
* She did not create this mistake
* She had nothing to do with this mistake
* She has requested several times that these mistakes be corrected
* She is 100% disabled and cannot work
* She was looking forward to her retired pay in 8 years to help her and relieve financial stress on her family
* She is very fearful DFAS will garnish her future pay
3. The applicant provides:
* SBP/RSFPP Premium Bill, dated October 2010
* Orders, dated 19 July 2005
* Letters, dated 27 February 2009 and 12 October 2011, from the Army Review Boards Agency
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 USAR on 5 October 1987.
3. A memorandum, dated 28 April 2006, advised the applicant:
* in accordance with the findings and recommendations of the U.S. Army Physical Disability Agency she was found to have a disability and would be placed on the Permanent Disability Retired List (PDRL) with a disability rating of 50%
* prior to activation of her retired pay account, she must complete the DD Form 2656 (Data for Payment of Retired Personnel) and return it in the attach pre-addressed envelope to the Finance and Accounting Center
4. On 12 May 2006, she was placed on the PDRL in the rank of specialist.
5. The available records do not contain a DD Form 2656.
6. DFAS records show they never received an SBP election from the applicant. Her current SBP election is automatic with full coverage, the default election when a valid election is not received.
7. She provided a bill from DFAS, dated October 2010, which states she owes $1,221.34 for SBP costs as of that date.
8. 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.
9. 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 coverage since she did not make an SBP election prior to her disability retirement in 2006.
2. The applicant's contentions were carefully considered. However, there is no evidence and the applicant provided no evidence which shows her spouse concurred with her election to decline SBP. Therefore, there is no basis for granting the applicants 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) AR20110021582
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ABCMR Record of Proceedings (cont) AR20110021582
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