IN THE CASE OF:
BOARD DATE: 11 July 2013
DOCKET NUMBER: AR20120022966
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, in effect, correction of her military records to show she elected to decline participation in the Survivor Benefit Plan (SBP). She further requests a refund of all premiums paid toward the SBP.
2. The applicant states she does not have a spouse, and never has had a spouse. Furthermore, she contends that she does not remember ever meeting with anyone about the SBP; but does admit that she might have. She was in a medical hold unit at the time of her retirement. The out-processing at Fort Gordon, GA was difficult to comprehend because there was a single briefing at one location for everything. She phoned someone in the past about the SBP and was told she had no other choice but to continue with the plan. She attempted again to explain her situation but was again told she had no choice but to participate.
3. The applicant further explains that in 2000, while stationed at Ansbach, in the Federal Republic of Germany, she was diagnosed with stage 2 breast cancer. She was asked where she wanted her surgery to occur and opted for treatment at Walter Reed Army Medical Center in Washington, DC. She further opted to do her recovery at Fort Gordon, GA, where she underwent chemotherapy and was monitored.
4. In June 2001, she was approached by her doctor with some information concerning retirement from the U.S. Army due to her medical condition. She has no recollection of ever attending a briefing related to the SBP, or to having to submit paperwork to opt out of the SBP. She has since been told that if you do not opt out of the SBP the system defaults to an enrollment for spouse coverage at the highest rate. She only recently questioned the information she received about not having any choice and now knows what she was told earlier was incorrect.
5. The applicant provides copies of:
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 1966 (Record of Military Processing - Armed Forces of the United States), dated 14 November 1990
* Standard Form 88 (Report of Medical Examination) dated 4 May 2001
* Enlisted Record Brief, dated 30 July 2001
* Defense Finance and Accounting Service (DFAS) Form 702 (Leave and Earnings Statement) dated July 2001
* Letter, David Eisenhower Army Medical Center, Narrative Summary, dated 28 August 2003
* DFAS-CL 7220/148 (Retiree Account Statement), effective 20 September 2012
* DD Form 1172-2 (Application for Identification Card/DEERS Enrollment) dated 1 November 2012
* "RAPIDS - 7.5.5.9.0" Data base printouts
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. On 14 November 1990, the applicant enlisted in the Regular Army.
a. Her DD Form 1966/1 shows the applicant's marital status as single.
b. Her DD Form 1966/2 shows in the block for "spouse" the word "single" and in the block for "children" two minor children are listed.
3. The applicant's Enlisted Record Brief, dated 30 July 2001, shows her marital status as single.
4. Her DD Form 214 shows the applicant was retired effective 25 October 2001 due to temporary physical disability. She had attained the rank of sergeant, pay grade E-5 and had completed 10 years, 11 months, and 12 days of creditable active duty service.
5. The letter from David Eisenhower Army Medical Center, Narrative Summary, dated 28 August 2003, states the applicant had undergone a mastectomy in March 2000, followed by chemotherapy and radiation treatments. Her course of treatment was characterized by profound weakness, precluding her from military service.
6. DFAS-CL 7220/148, effective 20 September 2012 shows the applicant claims "single" status for Federal tax withholding. This form also shows she is paying for "spouse only" SBP coverage.
7. "RAPIDS" data base shows that the applicant's present marital status is "never married."
8. 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 SBP election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).
DISCUSSION AND CONCLUSIONS:
1. The applicant requests, in effect, correction of her military records to show she elected to decline participation in the SBP because she does not now and never has had a spouse. She further requests a refund of all premiums paid towards SBP.
2. The available evidence shows the applicant underwent a mastectomy in March 2000, followed by chemotherapy and radiation treatments. She was medically retired on 25 October 2001.
3. The available evidence clearly shows that the applicant was not married at the time of her physical disability retirement from the U.S. Army. There is no evidence indicating that she was ever married. There is evidence that the applicant had two minor children who were eligible beneficiaries for the SBP.
4. Because of the applicant's medical treatment at the time of her retirement, it is reasonable to presume that she was not properly counseled concerning the SBP or that she was not briefed at all, but rather was defaulted to spouse coverage because government officials mistakenly believed she was married.
5. In view of the above, and as a matter of equity, the applicant's request should be granted.
BOARD VOTE:
____X____ ___X_____ ____X____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
a. showing that the applicant declined to participate in the Survivor Benefit Plan prior to her retirement and her declination was accepted and processed by the appropriate office in a timely manner; and
b. refunding all monies she has paid in Survivor Benefit Plan premiums.
_______ _ _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) AR20120022966
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ABCMR Record of Proceedings (cont) AR20120022966
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