IN THE CASE OF:	  

		BOARD DATE:	  5 November 2013

		DOCKET NUMBER:  AR20130003571 


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 that his records be corrected to show he declined to participate in the Survivor Benefit Plan (SBP) and that he be refunded all of the SBP premiums that he paid.

2.  The applicant states he elected not to participate in SBP by marking 28g in section VII – SBP Election on page 4 of the DD Form 2656 (Data for Payment of Retired Personnel) at the time he was placed on the Temporary Disability Retired List (TDRL) in 2002.  At that time, SBP premiums were not being collected.  However, when he was permanently retired 5 years later, the Defense Finance and Accounting Service (DFAS) enrolled him in SBP by default due to being unable to read his election on the form.  He has contacted DFAS many times in an effort to correct this error.  Every month he is billed $141.00 for something he did not want. 

3.  The applicant provides page 4 of his DD Form 2656 and Standard Form 3107-2 (Spouse's Consent to Survivor Election).

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 was appointed as a second lieutenant in the Louisiana Army National Guard (LAARNG) on 19 August 1990.  He was promoted to captain on 12 August 1999.

3.  Orders D201-1, issued by the U.S. Army Physical Disability Agency (USAPDA), dated 16 October 2002, show he was placed on the TDRL with a 40 percent disability rating effective 31 October 2002.

4.  The applicant provides page 4 of his DD Form 2656.  He completed the form on 1 November 2002 and elected not to participate in the SBP.  His wife concurred with his decision.  

5.  Orders D016-19, issued by the USAPDA, dated 16 January 2008, show he was removed from the TDRL on 30 October 2007 and permanently retired on the following date.

6.   During the processing of the case, a member of the Board's staff contacted DFAS.  The DFAS official stated the applicant had been paying SBP premiums since he was placed on the retired list in 2002.  In 2010 the applicant's Department of Veterans Affairs (VA) disability benefits offset exceeded his military retired pay (full VA waiver status) resulting in him having no military retired pay from which to deduct the SBP premiums.  This resulted in a bill for the monthly premiums of approximately $140 being sent directly to him, which it appears was when he first became aware that he was being charged for SBP coverage.

7.  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 to not participate in the SBP (with the spouse's concurrence), must be made before the first day for which he or she is eligible for that pay.

8.  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 the SBP.  The spouse’s concurrence is required.  No premiums will be refunded to those who opt to disenroll.  The effective date of termination is the first day of the first calendar month following the month in which the election is received by the Secretary concerned.  Absent the loss of an eligible beneficiary, the law provides no provisions for terminating SBP coverage prior to the two-year anniversary of commencement of retired pay, or after three years of receiving retired pay. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that in 2002 he elected not to participate in the SBP was clearly marked on his DD Form 2656 was carefully considered.  However, an SBP election not to participate in the SBP (with the spouse's concurrence) must be made before the first day for which an individual is eligible for retired pay.  His election was made 1 day after he was eligible for retired pay which was not within the time required by law.  It appears that based on the above, DFAS enrolled him in the SBP by default.

2.  It appears he believed his election not to participate in the SBP had been accepted as such by DFAS in 2002.  It appears he did not use due diligence by reviewing his Retirement Account Statements.  Had he done so he would have been aware that SBP premiums were being deducted from his military retired pay.  There is no evidence that he attempted to terminate his SBP participation in the one-year period between his second and third anniversary (31 October 2004 and 31 October 2005) of receipt of retired pay, which is the only opportunity that is provided by the governing law. 

3.  Nevertheless, on 1 November 2002 the applicant’s spouse indicated that she concurred with his decision not to participate in the SBP.  

4.  It would not be equitable to correct the applicant’s records to show that he elected not to participate in the SBP at the time he became eligible for retired pay.  His first opportunity to elect to terminate his participation in the SBP would have occurred during the one-year period beginning on 31 October 2004.  However, he did not apply to this Board for termination of his SBP until February 2013.  His spouse received the protection offered by the SBP during that time frame.

5.  It would be equitable, however, to correct his records to show that he elected to terminate his participation in the SBP effective October 2005, the last month of the one-year withdrawal period.  No premiums will be refunded for the SBP protection his spouse received during that first 3-year period.  However, it would be appropriate to refund premiums paid by him after October 2005.   


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he requested, with his spouse’s concurrence, to withdraw from SBP participation effective at the end of the one-year period at the end of the third anniversary (October 2005) of his receipt of retired pay.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to refunding any premiums already paid other than those due as a result of the above correction. 




      _______ _   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)                                         AR20130003571



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ABCMR Record of Proceedings (cont)                                         AR20130003571



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