IN THE CASE OF:
BOARD DATE: 6 October 2015
DOCKET NUMBER: AR20150002298
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 addition to the reimbursement of 6 years of premiums he has already been paid, the refund of all funds applied toward Survivor Benefit Plan (SBP) that he has paid since his divorce.
2. The applicant states, in effect, he:
* retired on 1 September 1981 and was divorced on 7 May 2003
* was under the mistaken impression his ex-wife would be automatically covered as a former spouse
* he paid his SBP premium for 11 years before he was told he was doing it wrong
* Defense Finance and Accounting Service (DFAS) conducted an audit and he was reimbursed 6 years of SBP premium payments; with this application he is asking for reimbursement of the remaining 11 years
3. The applicant provides:
* divorce decree
* letter, dated 26 August 2014, sent by the Defense Finance and Accounting Service (DFAS), addressed to the applicant with associated documents to include Direct Remittance Audit Sheet
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 14 October 1975.
2. As a result of injuries sustained in an automobile accident, a physical evaluation board (PEB) found the applicant to be unfit for further military service on 12 June 1980. The PEB recommended the applicant receive a disability rating of 50 percent and placement on the Temporary Disability Retired List (TDRL). The applicant concurred.
3. On 10 September 1980, the applicant completed a DA Form 4240 (Data for Payment of Retired Army Personnel). On this form he elected spouse-only SBP full coverage.
4. On 19 September 1980, the applicant was honorably discharged and placed on the TDRL effective 20 September 1980. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 years, 11 months, and 2 days of net active creditable service.
5. On 17 July 1981, a PEB recommended the applicant be removed from the TDRL and placed on the Permanent Disability Retired List. The applicant concurred. Effective 31 August 1981, he was permanently retired with a disability rating of 50 percent.
6. An email from DFAS confirmed the following:
* the applicant notified DFAS of his divorce on 14 July 2014
* his premiums were suspended that same day
* currently the applicant does not show a beneficiary for SBP
* he requested reimbursement of all SBP premium payments dating from his divorce on 7 May 2003; a credit was issued for the past 6 years
* the credit was given on 4 September 2014
7. The applicant provides:
a. A divorce decree showing the applicant and his former spouse divorced on 7 May 2003. While the decree addresses military retired pay, it is silent with regard to SBP.
b. A letter from DFAS with an attached Direct Remittance Account Computation Audit Sheet which shows the applicant does not owe the government money, and he was issued a credit of $488.29 for the period October 2013 to August 2014.
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 election, once made, was irrevocable except in certain circumstances.
9. Title 31, U.S. Code, section 3702, is the 6-year barring statute for payment of claims by the government. In essence, if an individual brings a claim against the government for monetary relief, the barring statute says that the government is only obligated to pay the individual 6 years from the date of approval of the claim. Attacks to the barring statute have resulted in litigation in the U.S. Court of Federal Claims. In the case of Pride versus the United States, the court held:
* Boards for Correction of Military Records (BCMR) were not bound by the barring act
* BCMR decisions create a new entitlement to payment and the 6 year limit becomes reset
* payment is automatic and not discretionary when a BCMR decision creates an entitlement
DISCUSSION AND CONCLUSIONS:
1. The evidence of record confirms at the time of the applicant's retirement in 1980 he was married. It also shows he elected full SBP coverage for only his then-spouse, as confirmed by his DA Form 4240.
2. He was divorced on 7 May 2003. Due to limitations set by the barring statute, DFAS only reimbursed him for 6 years of premiums paid following the divorce.
3. It is evident he is eligible to be reimbursed all SBP premiums paid after his divorce and would have received those premiums were it not for the barring statute.
3. Based upon the foregoing, and as a matter of equity, he should be reimbursed the remainder of SBP premiums he paid.
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:
* showing the applicant submitted a DD Form 2656-6 (SBP Election Change Certificate) on 1 June 2003 informing DFAS of his divorce and requesting that his spouse election be placed in a suspended status
* showing DFAS received and processed his DD Form 2656-6 within accepted time limits, and
* reimbursing to him all premiums not yet reimbursed, but paid on or after 7 May 2003
_______ _ __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.
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