IN THE CASE OF:	  

		BOARD DATE:	  5 February 2013

		DOCKET NUMBER:  AR20120013449 


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, L.M.J., the widow and second wife of a deceased retired former service member (FSM), requests reimbursement of Survivor Benefit Plan (SBP) premiums that were paid and any necessary corrections that are required to the FSM's records.

2.  The applicant states:

	a.  she believes her husband was not of sound mind and possibly suffered from an undiagnosed post traumatic stress disorder (PTSD) when he made the decision to terminate SBP coverage due to depression and caring for his terminally ill spouse, D.M.J;

	b.  his former spouse, D.M.J., died in January 2001; and

	c.  the applicant married the FSM on 9 January 2002.

3.  The applicant provides:

* Letter, Defense Finance and Accounting Service (DFAS), dated 13 May 2011
* Department of Veterans Affairs (VA) rating decision extract, dated 17 September 2011
* DD Form 2656-2 (SBP Termination Request), page 2, dated 29 January 1999
* Death Certificate
CONSIDERATION OF EVIDENCE:

1.  The FSM, a member of the U.S. Army Reserve, was honorably released from active duty on 30 June 1964.  He was retired on 1 July 1964 in the rank/grade of major/O-4.  He enrolled in the SBP during the first open season.

2.  The FSM's DD Form 2656-2, dated 1 January 1999, shows he requested to discontinue his participation in the SBP with the concurrence of his spouse at the time.  The form also shows:

	a.  the FSM acknowledged that he understood once he discontinued the SBP, the costs already paid for SBP coverage would not be refunded and he could not reenter the plan; and

	b.  the Retirement Service Officer witnessed both the FSM's and his spouse's signatures.

3.  A marriage certificate provided by DFAS shows the applicant and FSM were married on 9 January 2002.

4.  On 17 September 2010, the VA awarded the FSM a 30 percent disability rating for PTSD.  

5.  On 19 December 2010, the FSM died.

6.  On 11 February 2011, the applicant submitted a claim to DFAS for an SBP annuity and an audit of the FSM's pay records.

7.  On 13 May 2011, DFAS provided a response through the applicant's Congressman.  The response stated:

	a.  the FSM elected to participate in the SBP on 1 October 1973 and elected spouse and child coverage;

	b.  SBP premiums were deducted from his retired pay account until his military retired pay was suspended in 1995;

	c.  his VA compensation exceeded his gross military retired pay; therefore, a directed remittance account was established which allowed him to pay his monthly SBP premiums;

	d.  the FSM elected to terminate his SBP coverage during the 1998-1999 SBP Open Season;
	e.  an audit of the FSM's retired pay account shows he was underpaid Combat-Related Special Compensation (CRSC) for the period June 2003 through April 2010 for a total credit amount of $63,551;

	f.  the underpaid CRSC was due to incorrect VA rating codes on his retired pay account;

	g.  the FSM died on 19 December 2010 and entitlement to retired pay terminated on the date of his death;

	h.  his military retired pay account showed arrears of pay (AOP) in the amount of $1,701.13 for the period 1 through 19 December 2010;

	i.  on 2 May 2011, two payments totaling $65,064.61, which covered the underpaid CRSC, AOP, and less the SBP direct remittance debt of $187.52,  were mailed to the applicant;

	j.  the DD Form 2656-2 signed by the FSM shows that no SBP benefits will be paid upon his death and that no other refund of premiums already paid for the SBP will be made;

	k.  the FSM's spouse at the time concurred with his SBP termination request; and

	l.  the FSM's participation in the SBP was barred from the date he made the termination request, regardless of his future marital status.

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 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from SBP.  The spouse’s concurrence is required.  No premiums will be refunded to those who opt to disenroll.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reimbursement of SBP premiums paid by her now deceased husband and any necessary correction of his records was carefully considered.
2.  Prior to retirement the FSM was provided an opportunity to make an SBP election.  He elected spouse and child coverage.  However, during the 1998-1999 SBP Open Season, the FSM and his spouse elected to terminate SBP coverage effective March 1999.

3.  Once the FSM elected to terminate his participation in SBP, he was barred from future enrollment.  Further, he acknowledged premiums would not be refunded.  There is no evidence he was not of sound mind.

4.  The applicant was never enrolled in the SBP, nor is she entitled to reimbursement of premiums.  There is no error or injustice.

5.  In view of the foregoing, there is insufficient evidence to grant the requested relief.

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)                                         AR20120013449



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ABCMR Record of Proceedings (cont)                                         AR20120013449



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