IN THE CASE OF:    

		BOARD DATE:  21 July 2015	  

		DOCKET NUMBER:  AR20140018873 


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, the wife of a deceased former service member (FSM), requests relief from an $8,176.08 debt she incurred as a result of a Defense Finance and Accounting Service (DFAS) error that resulted in the erroneous payment of a Survivor Benefit Program (SBP) annuity.  

2.  The applicant states she reported the FSM's death to the casualty office in September 2013 and received many forms from the Department of the Army to fill out and return.  She completed and returned most of the forms, except for the application form for SBP and some other forms related to benefits to which she did not think she was entitled.  One day she called DFAS and was told that her husband never declined SBP and that she should send in the SBP application.  She did as advised and sent in the form in November 2013.  

	a.  After she submitted the SBP application she received two letters dated   16 December 2013.  The first letter stated she would receive an account statement containing a breakdown of her monthly annuity payment.  The second letter stated she owed DFAS $38,853.00.  She called the Retired and Annuitant Pay section at DFAS and asked about these two letters because she did not understand what was happening.  The DFAS official told her there were no records on file showing the FSM declined SBP.  Therefore, while she was entitled to receive the maximum amount of SBP, she would first have to pay off the unpaid premiums.  It was a lot of money, but she was happy to have the SBP.

	b.  She took the money out of her savings and sent the money to DFAS to pay off the debt, but it was re-deposited back into her bank account.  As time passed she learned about Dependency and Indemnity Compensation (DIC) and Special Survivor Indemnity Allowance (SSIA).  

	c.  During this period she was not clear about how much money, if any, she owed DFAS.  She never received any details from DFAS about the debt.  She thought the debt was for SBP premiums the FSM did not pay and waited for DFAS to determine the correct amount of debt due to the DIC deduction from the SBP amount.  DFAS told her to wait for the final unpaid amount of premiums from DFAS.  Everything she was told or received from DFAS made her believe she was entitled to SBP and SSIA.  

	d.  She received a letter of debt from DFAS, dated 25 September 2014, stating she owed DFAS $8,176.08.  She called DFAS to inquire about this debt and was informed DFAS found a copy of the FSM's SBP declination.  

	e.  She submitted the application for SBP because DFAS officials informed her the FSM never declined SBP and told her to submit an application.  Now DFAS officials have told her he declined to participate in SBP and she has incurred a debt she must pay.  She understands she is no longer entitled to the SBP annuity payment; however, she does not feel she should be held responsible for paying a debt that was neither created as a result of her mistake nor as a result of a fraudulent claim.  She did not create this debt.  Her debt is the result of error and oversight at DFAS.  

3.  The applicant provides:

* her marriage certificate
* the FSM's death certificate
* four letters from DFAS Retired and Annuitant Pay, dated 16 December 2013, 11 March 2014, and 25 September 2014
* three Annuitant Account Statements, dated 23 January 2014, 20 March 2014, and 21 August 2014

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 FSM enlisted in the Regular Army on 20 May 1964 and held military occupational specialties 13B (Field Artillery Crewman), 11F (Infantry Intelligence Operation), and 71L (Administrative Specialist).  The highest rank/grade he attained while serving on active duty was first sergeant (1SG)/E-8.  

3.  His record contains a DD Form 1172 (Application for Uniform Services Identification Card DEERS Enrollment), dated 30 July 1990, which contains a photograph of the FSM and his former spouse, Chong.  This form also shows the FSM and Chong were married on 4 November 1969, and that Chong was currently residing in Seoul, Korea.

4.  The FSM was honorably retired from active duty on 31 December 1990.  There is no evidence of record indicating he made an SBP election prior to his retirement.   

5.  The FSM sent a letter to the Department of the Army SBP Board, dated 
31 December 1990, wherein he requested a waiver of spousal concurrence.  He stated that he and Chong separated in late 1989 while he was stationed in Korea and she decided to remain in Korea when he was reassigned to the United States in June 1990.  As such, she was unable to provide a statement of concurrence with respect to his decision to decline SBP coverage. 

6.  The applicant provided the FSM's divorce decree that shows the FSM and Chong were divorced on 14 February 1991.

7.  His record contains a letter issued by the U.S. Army Community and Family Support Center, dated 1 March 1991, stating the SBP Board met on 15 February 1991 and approved the FSM's request to decline SBP coverage by granting an approval to his request for a waiver for spousal concurrence.  

8.  The applicant provided a marriage certificate that shows she and the FSM were married on 18 May 1991.

9.  The applicant provided a copy of the FSM's death certificate, wherein his date of death is listed as 13 September 2013.

10.  The applicant completed a DD Form 2656-7 (Verification for Survivor Annuity), dated 12 November 2013, wherein she claimed SBP for spouse.

11.  The applicant provided two letters from DFAS, dated 16 December 2013, and an annuitant account statement, dated 23 January 2014.  These letters informed her:

	a.  DFAS had all the documentation needed to establish her SBP annuity and that she would be receiving an account statement containing a breakdown of her monthly payment within the next 30 days.

	b.  The SBP premiums were not paid in full by the FSM and she owed an SBP cost debt of $38,853.94 (including interest).  They could either deduct the cost from her annuity payments until the debt was paid in full or she could submit payment in full to DFAS.  Additionally, the annuitant account statement dated 
23 January 2014 reflected this debt.

12.  The applicant provided another letter from DFAS, dated 11 March 2014, and two additional annuitant account statements, dated 20 March 2014 and             21 August 2014.  The letter informed her that she was entitled to the SSIA and that the SSIA was an allowance payable to all SBP annuitants whose annuity was offset by the receipt of DIC.  The two additional statements show the amount of debt owed (of the initial debt identified in the 16 December 2013 letter from DFAS) varying the applied DIC.

13.  The applicant provided a letter from DFAS, dated 25 September 2014.  This letter informed her that DFAS had identified an overpayment of her during the period 1 September 2013 to 30 September 2014.  Furthermore, as a result of the overpayment she had incurred an SBP debt of $8,176.07.  This letter did not address SSIA or DIC.

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.  Title 10 U.S. Code (USC), section 1448 (10 USC 1448), in effect at the time, required notice to a spouse if a member elected to participate in the SBP.  The statute also provided for automatic enrollment for spouse coverage at the full base amount unless a member affirmatively declined to participate in the SBP prior to receiving retired pay.  10 USC 1448 was amended effective 1 March 1986 to require written concurrence by the spouse in a member's decision to decline the SBP or elect spouse coverage at less than the full base amount.  

DISCUSSION AND CONCLUSIONS:

1.  The FSM was married to his first spouse, Chong, at the time of his retirement; the evidence of record strongly suggests that he failed to make an SBP election prior to his retirement.  Later, he petitioned for and was granted a waiver for spousal concurrence to allow him to decline SBP coverage.  This request was granted 1 day after his divorce from Chong was finalized in February 1991.  

2.  When the FSM married the applicant in May 1991, he had already declined to participate in the SBP.

4.  Since the FSM elected not to participate in the SBP and since he was granted a waiver for spousal concurrence, the applicant was not entitled to the SBP annuity at the time of death.  

5.  It is unclear why DFAS led the applicant to believe she was entitled to this benefit; perhaps it was because they were initially unaware of his declination due to the age of the records involved in this case.

6.  However, the applicant did receive money based on an SBP annuity to which she was not entitled.  Therefore, there is insufficient justification 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)                                         AR20140020169



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ABCMR Record of Proceedings (cont)                                         AR20140018873



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