BOARD DATE:	  8 January 2013

		DOCKET NUMBER:  AR20120010237 


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 termination of his enrollment in the Survivor Benefit Plan (SBP) for child coverage and reimbursement of any premiums collected.

2.  The applicant states:

	a.  When he retired in November 2003, he declined SBP enrollment and his spouse concurred.  They adopted a son in August 2010 and applied for SBP coverage within a year in June 2011.  In February 2012, he called officials at the Defense Finance and Accounting Service (DFAS) but was told someone would contact him.  A week later he received a letter, dated 16 February 2012, from DFAS informing him that an adjustment was made to his pay account, effective 1 July 2011, with the amount of $405.15 in arrears.

	b.  DFAS processed his request without contacting him or explaining why it took 7 months to process this action.  No one contacted him to check if he still wanted this coverage.  He was charged with coverage that he did not have.  DFAS has made several errors in processing his paperwork, among them, incorrect interpretation of the DD Form 2656-6 (SBP Election Change Certificate), failing to notify him that they disapproved his request, processing a 7-month old request without verification, unwillingness to communicate with him, and concluding that a child SBP election is irrevocable. 

3.  The applicant provides multiple congressional correspondence and letters to/from DFAS.
 
CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was appointed as a Regular Army commissioned officer and entered active duty on 18 May 1983.  He served in a variety of assignments and he attained the rank of lieutenant colonel (LTC).  He and his spouse were married on 12 October 2001.

2.  He retired on 31 October 2003 and was placed on the Retired List in his retired grade of LTC on 1 November 2003.  His SBP election at the time of retirement is not available for review; however, he states he declined SBP coverage, presumably with her concurrence.

3.  On 21 June 2011, DFAS received a DD Form 2656-6 from the applicant.  He stated that he acquired a dependent child, born on 14 August 2010, and he elected child only SBP coverage based on the full amount.  

4.  On 16 February 2012, by letter, DFAS officials notified him that an adjustment was made to his retired pay account based on the information he submitted.  This adjustment resulted from a change to his SBP coverage from "declined coverage" to "child coverage" effective 1 July 2011.  As a result, his SBP cost had changed to $59.35 per month and that since this was a retroactive change, he owed the amount of $405.15 in arrears.

5.  On 22 February 2012, by letter to DFAS, he contended that when he called to inquire about the status of his SBP coverage earlier this month, he was told his request was denied and that DFAS officials refused to call him back.  Additionally, despite being told it was denied, the letter he received indicated otherwise.  He alleged that the decision to enroll his child and charge him back pay was made unilaterally by DFAS without consulting with him.

6.  In April and May 2012, he contacted his congressional liaison in an attempt to resolve the issue.  

7.  On 1 May 2012, by letter to his Member of Congress, a DFAS official stated:

	a.  The applicant did not have eligible children at the time he retired and he elected to decline SBP coverage for his spouse at the time.  On 21 June 2011, he submitted a DD Form 2656-6 electing child only SBP coverage for his son who was born on 14 August 2010.  

	b.  His request to add his son was incorrectly denied on 12 August 2011.  However, upon review - subsequent to a phone call from the applicant - it was determined the prior determination to deny was made in error.  When the error was discovered, his son was added to the SBP account and an adjustment was made from "declined" to "child" coverage, effective 1 July 2011.  Had the applicant died at any time after making that election, his son would have been entitled to the SBP annuity. 

	c.  SBP coverage begins on the effective date of the election and the cost is effective on the first of the month following the effective date of coverage.  His cost began on 1 July 2011 and the amount of $405.15 is the total premiums due for the period 1 July 2011 through 31 January 2012.  Collection of this debt occurred in March 2012 and it was deducted from his pay.  

	d.  According to the Department of Defense Financial Management Regulation (DODFMR), Volume 7B, chapter 43, section 4304, SBP elections are irrevocable.  Therefore, a refund of premiums is not allowed and the monthly amount of $59.35 would continue to be deducted from his retired account. 

8.  References:

	a.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election, once made, was irrevocable except in certain circumstances.  Since its creation, it has been subjected to a number of substantial legislative changes.

	b.  Title 10, U.S. Code, section 1447(11)(A) states dependent children, including adopted children, are eligible for SBP payments as long as they are unmarried, under age 18, or under age 22 if still in school.  A child who is disabled and incapable of self-support remains eligible if the disability occurred before age 18 (or before age 22 if a full time student).  

	c.  Title 10, U.S. Code, section 1448(5) states a person who is not married and has no dependent child upon becoming eligible to participate in the Plan but who later marries or acquires a dependent child may elect to participate in the Plan.  Such an election must be written, signed by the person making the election, and DOD Financial Management Regulation, Volume 7B, received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child.  Such an election may not be revoked except in accordance with subsection (b)(3).  The election is effective as of the first day of the first calendar month following the month in which the election is received by the Secretary concerned. 

	d.  DOD Financial Management Regulation 7000.14-R, Volume 7B (Military Pay Policy and Procedures – Retired Pay) states in chapter 43 (SBP):
		(1)  section 4304 (Irrevocable Elections, Corrections, and Discontinued Participation), an election is irrevocable, except under certain circumstances, among them is the Secretarial authority.  The Secretary concerned may revoke an election when necessary to correct an administrative error.  Revocation or correction based on administrative error is a Secretarial prerogative and, except when procured by fraud, is final and conclusive on all officers of the United States.

		(2)  section 4306 (Later-Acquired Spouse and/or Child), a member who acquires a new spouse and/or child after retirement must make an election within 1 year of the event with the exception that there is no time restriction on the election period for a change under subparagraph 430601.B.5, of this chapter. 

DISCUSSION AND CONCLUSIONS:

1.  When the applicant retired, he elected, with spouse concurrence, not to participate in the SBP.  He and his wife then acquired a child, born on 14 August 2010.  Within one year, specifically on 16 June 2011, the applicant submitted an appropriate form requesting a change to his coverage from “no election” to “child” coverage based on the full amount.  

2.  DFAS received his request on 21 June 2011 and it appears he was erroneously denied enrollment in August 2011.  However, a subsequent follow-up by the applicant led to a review of his account and discovery of the error.  Once the error was discovered, it was corrected.  He was not forced to pay for coverage he did not receive.  Had the applicant died during this period, this same error would have been discovered and his son would have received an annuity. 

3.  The law stipulates that a member who does not have a dependent child at the time of initial eligibility for SBP may elect coverage for a dependent child within the one-year period after acquiring the first dependent child.  The election is effective as of the first day of the first calendar month (July 2011 in his case) following the month in which the election is received by the Secretary concerned. In other words, the applicant had SBP child coverage effective 1 July 2011.  

4.  His costs began on 1 July 2011 and the amount of $405.15 is the total premiums due for the period 1 July 2011 through 31 January 2012.  Collection of this debt occurred in March 2012 and it was deducted from his pay.  

5.  The decision to enroll in or disenroll from the SBP is a personal decision made by the member and his/her family.  In this case, the applicant wanted SBP coverage for his child.  Had this not been the case, he would not have submitted the SBP Election Change Certificate or contacted DFAS telephonically or followed up at a later date in February 2012.  

6.  Aside from a harmless error that has already been corrected by DFAS, there is no error in his SBP coverage and no reason to terminate this coverage or reimburse him any premiums.  

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)                                         AR20120010237





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ABCMR Record of Proceedings (cont)                                         AR20120010237



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