RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-00928 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: The debt accrued for Survivor Benefit Plan (SBP) annuity be forgiven. ________________________________________________________________ APPLICANT CONTENDS THAT: In July 1998, he was awarded 100 percent disability from the Department of Veteran’s Affairs (DVA). At that time, his military pay was stopped, yet, he was continually billed for SBP premiums. His survivor would not have received SBP as they were entitled to Dependency Indemnity Compensation (DIC) from the DVA and that amount is higher. The law prohibits a survivor from receiving both. In support of the appeal, the applicant provides a personal statement, DVA rating and the Defense Finance and Accounting Service (DFAS) Debt Waiver Denial. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is a former member of the Air Force who retired on 1 March 1974. On 12 June 1998, he was granted a 100 percent disability compensation rating. The rating was later modified to include individual unemployablity effective 6 June 1997. ________________________________________________________________ AIR FORCE EVALUATION: DFAS recommends denial. The applicant elected SBP on 1 March 1974. Under the law, SBP withdrawal due to disability provides certain retired military members with the option to discontinue participation in SBP. One of the qualifications for withdrawal is that the retired service member must be suffering from a service-connected disability rated by the DVA as totally disabling (100 percent rating) and have suffered from such a disability while so rated for a continuous period of 10 or more years. If qualified for withdrawal, the monthly costs terminate on the first day of the month following receipt of a valid withdrawal request from the retired service member. There are no provisions, under the law, where a military retiree can be refunded the SBP costs paid prior to his specific request to withdraw. In the event of his death, the surviving spouse would receive full SBP costs refund if her entitlement to the DVA DIC program proved more beneficial. In April 2001, the applicant was provided the SBP withdrawal fact sheet and the withdrawal consent form to complete and sign from the SBP. He did not choose to withdraw from the SBP. The applicant notified DFAS of the death of his spouse on 23 September 2009. An audit of his account found that he was delinquent. Effective 1 October 2008, members participating in SBP who are 70 years or older and who have paid into SBP for a period of 360 months, will no longer pay premiums for continued SBP annuity. The applicant is over the age of 70 and his SBP premiums have been stopped. In July 1998, his military retired pay account was placed in suspended status due to his DVA entitlement exceeding his military pay entitlement. A direct remittance account was created so that he could continue to pay his monthly SBP premiums and he received monthly SBP premium bills showing the balance and interest charges. The applicant was sent a letter dated 3 March 2011, explaining that an audit of his direct remittance account showed that he had an outstanding balance of $16,959.27 due to non-payment. This debt included his premiums for the period of July 1998 through the September 2008 and accrued interest for the period of July 1998 through February 2011. The complete DFAS evaluation is at Exhibit B. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: He does not recall being provided an SBP withdrawal consent form and does not believe he was given the opportunity to withdraw from SBP. The forms were listed as an attachment to the DFAS letter; however, they were not attached to the letter. The whole issue boils down to the simple fact that in July 1998 he became 100 percent disabled. His survivor became entitled to DIC which is much larger than SBP. There is a law on the books that states a survivor cannot receive both. Consequently, he has been asked to pay for a benefit that his survivor could not logically receive. The applicant’s complete response, with attachments, is at Exhibit D. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We took note of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. The applicant has provided no evidence to indicate that he withdrew from SBP which caused the debt. Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of an error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2013-00928 in Executive Session on 9 January 2014 and 22 May 2014, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-00928 was considered: Exhibit A. DD Form 149, dated 15 Feb 13, w/atchs. Exhibit B. Letter, DFAS, dated 4 Apr 13, w/atchs. Exhibit C. Letter, SAF/MRBR, dated 14 Apr 13. Exhibit D. Letter, Applicant’s Response, dated 4 May 13.