IN THE CASE OF:	

		BOARD DATE:	 10 October 2013

		DOCKET NUMBER:  AR20130004104 


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 Survivor Benefit Plan (SBP) participation and cancellation of his outstanding debt. 

2.  The applicant states:

* He has been receiving monthly bills for the SBP and he has returned the letters and requested cancellation for the past 8 1/2 years
* He did not know there was a certain time or month to cancel the SBP participation
* He has sent at least 60 letters or replies requesting this coverage be cancelled

3.  The applicant provides: 

* SBP Premium Bill
* Letter, dated 1 December 2012, from the Defense Finance and Accounting Service (DFAS)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant and his spouse, Sherry, were married on an unknown date.  His records show they had one child born on XX February 1996.

2.  He enlisted in the Army National Guard on 4 April 1989 and he held military occupational specialty 88M (Motor Transport Operator).  He served through multiple extensions and attained the rank/grade of sergeant (SGT)/E-5.

3.  He entered active duty on 21 January 2003 and subsequently served in Kuwait/Iraq from 4 April to 25 May 2003. 

4.  He was considered by a physical evaluation board (PEB) on 22 May 2004 for various medical conditions.  The PEB recommended an 80 percent combined disability rating and his placement on the temporary disability retired list (TDRL).

5.  He retired on 24 August 2004 and he was placed on the TDRL in his retired rank/grade of SGT/E-5 on 25 August 2004. 

6.  DFAS records show that, in connection with his retirement, he completed a DD Form 2656 (Data for Payment of Retired Personnel) wherein he elected SBP coverage for spouse and children based on the full amount.

7.  On 25 August 2004, the Department of Veterans Affairs (VA) awarded him service-connected disability compensation for multiple conditions at a combined rating of 100 percent. 

8.  In February 2005, DFAS informed him that he owed approximately $347.02 in SBP premiums consisting of about $86.19 in monthly premiums beginning in September 2004, plus interest.  

9.  He submitted a letter to DFAS on 14 February 2005 informing DFAS officials that he did not owe any money and that the family would not pay the bill until DFAS paid him his retired pay.    

10.  He underwent a TDRL PEB on 13 June 2005 that recommended he be permanently retired.  Accordingly, he was removed from the TDRL on 
22 June 2005 and permanently retired on 23 June 2005. 

11.  In January 2012, he received a bill from DFAS informing him that he owed $10,192.84 in SBP back premiums at the rate of $103.92 per month.  

12.  On 10 February 2012, by letter DFAS notified him that as previously instructed he had a 1-year window to withdraw from the SBP, starting on the 25th month through the 36th month after his eligibility to receive retired pay.  Since he had been retired 44 months he was no longer eligible to withdraw.

13.  On 1 December 2012, by letter, DFAS notified him that a correction to his records must be submitted through his branch of service.

14.  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.  This law also provides that every member having a spouse and/or child(ren), who retired/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list.

15.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a 1-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.  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.

DISCUSSION AND CONCLUSIONS:

1.  By law and regulation, married Soldiers who retire from the Army must take action to decline SBP coverage prior to retirement.  Otherwise, coverage defaults to "spouse" coverage.  Here, the applicant retired on 25 August 2004.  He elected SBP coverage for spouse and children based on the full amount. 

2.  The normal method of paying for SBP coverage is by an automatic deduction from the member's retirement pay.  However, in cases where a member has been ruled severely disabled by the VA and the member's VA compensation exceeds his/her retired pay, the member does not receive retired pay from DFAS.  As a result, DFAS cannot automatically deduct SBP premiums from the member's monthly pay.  In this case, the best way to pay for the SBP coverage is to have the member's payments deducted from their VA compensation and forwarded to DFAS Retired and Annuitant Pay by the VA.

3.  There are cases where the member does not receive retired pay from DFAS and does not elect to have payments deducted from their VA compensation and forwarded to DFAS Retired and Annuitant Pay by the VA.  In those cases, DFAS mails an SBP Premium Bill.  The bill shows the total amounts due, including interest charged on the balance due.  It appears the applicant falls into this category.  
4.  Nevertheless, the issue at hand is termination of SBP coverage.  By law retirees have a 1-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.  There is no evidence the applicant submitted his request to terminate the SBP within the timeframe authorized by law or his spouse concurred with such termination. 

5.  In view of the foregoing evidence, there is insufficient evidence to support granting him 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)                                         AR20130004104



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ABCMR Record of Proceedings (cont)                                         AR20130004104



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