Search Decisions

Decision Text

ARMY | BCMR | CY2011 | 20110021582
Original file (20110021582.txt) Auto-classification: Denied

		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 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.  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 applicant’s 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





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110021582



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

Similar Decisions

  • ARMY | BCMR | CY2007 | 20070008928

    Original file (20070008928.txt) Auto-classification: Approved

    On 16 October 2007, DFAS informed this agency by email that the applicant used the wrong DD Form 2656 and signed it on 15 April 2007 after having been placed on the TDRL. The applicant alleges that she does not remember electing SBP; however, the evidence shows that she completed an SBP Election Certificate, DD Form 2656-5 (the incorrect form for a member being medically retired), on 15 April 2005, after placement on the TDRL. The applicant reviewed her Retiree Account Statement (SBP/RSFPP...

  • ARMY | BCMR | CY2011 | 20110021515

    Original file (20110021515.txt) Auto-classification: Denied

    IN THE CASE OF: BOARD DATE: 24 May 2012 DOCKET NUMBER: AR20110021515 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. The applicant requests her military records be corrected by canceling her Survivor Benefit Plan (SBP) election for spouse and children coverage. 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...

  • ARMY | BCMR | CY2014 | 20140007817

    Original file (20140007817.txt) Auto-classification: Approved

    He was advised that the SBP premiums would be deducted from his Military Disability Retired Pay every month. Therefore, it would be appropriate to correct the record to show his participation in the SBP was terminated effective 23 September 2013. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to by: a. showing his DD Form 2656-2 was received and processed on 23 September 2013; b. terminating his participation in the SBP...

  • ARMY | BCMR | CY2013 | 20130007142

    Original file (20130007142.txt) Auto-classification: Approved

    IN THE CASE OF: BOARD DATE: 6 February 2014 DOCKET NUMBER: AR20130007142 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. On 31 January 2011, the Physical Disability Board of Review (PDBR) reviewed the applicant's record and recommended that he be permanently retired with a total combined disability rating of 40 percent. 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 provided less than...

  • ARMY | BCMR | CY2012 | 20120006665

    Original file (20120006665.txt) Auto-classification: Denied

    The FSM died on 12 July 1996 and based on their review of his military retired pay account, he declined participation in both the RSFPP and SBP. Based on this, there are no annuity entitlements payable to the applicant from the FSM's military retired pay account. If the applicant had requested an annuity within 6 years of the FSM's death, her claim would have been denied due to the FSM's declination of SBP coverage.

  • ARMY | BCMR | CY2011 | 20110011348

    Original file (20110011348 .txt) Auto-classification: Approved

    The evidence of record confirms the applicant elected spouse and children SBP coverage at a reduced base amount at the time of his retirement from military service. SBP premiums are deducted from a member’s retired pay. Therefore, based on the lack of SBP counseling received at the time of retirement, the applicant's record should be corrected in the interest of equity and justice, to show he declined participation, with his wife's concurrence, in the SBP which would also result in the...

  • ARMY | BCMR | CY2015 | 20150009327

    Original file (20150009327.txt) Auto-classification: Approved

    The evidence of record shows the applicant submitted a DD Form 2656 and a DD Form 2656-1 wherein he elected to participate in the SBP for former spouse and children coverage pursuant to a written agreement previously entered into voluntarily as part of divorce proceedings and incorporated in a court order. The divorce proceedings do not compel the applicant to provide SBP coverage for his former spouse. Although the applicant indicated on the forms that he entered into a written agreement...

  • ARMY | BCMR | CY2011 | 20110023280

    Original file (20110023280.txt) Auto-classification: Denied

    d. Section XI (Certification), item 30 (Member), states, in part, "Also, I have been counseled that I can terminate SBP participation, with my spouse's written concurrence, within 1 year after the second anniversary of commencement of retired pay. The applicant also provides a copy of a letter from DFAS to his State Congressional representative, dated 23 November 2011, regarding his SBP election. DFAS advised the representative that the applicant was not eligible to terminate his SBP...

  • ARMY | BCMR | CY2010 | 20100008441

    Original file (20100008441.txt) Auto-classification: Denied

    The applicant, the widow of a former service member (FSM), requests, in effect, correction of the FSM's records to show she is entitled to Survivor Benefit Plan (SBP) benefits. The applicant provides copies of: * two self-authored Petitions * birth certificates for the FSM, herself, and their son * her and the FSM's marriage license * the FSM's Retirement Orders * the FSM’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * the FSM's certificate of death * a...

  • ARMY | BCMR | CY2015 | 20150003093

    Original file (20150003093.txt) Auto-classification: Approved

    An email from DFAS confirmed the following: * the applicant's account currently shows she declined SBP coverage effective 6 March 2015; no premiums are being deducted at this time * at her retirement, the applicant's account listed no beneficiary * when she reported her marriage, 1 month (and only 1 month) of SBP premiums was deducted * SBP coverage stopped in March 2015 based upon the receipt of further documentation clarifying the applicant had declined coverage * there is no indication in...