MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:            10 June 1999      
	DOCKET NUMBER:   AR1998013286

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Ms. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. Elzey J. Arledge, Jr.		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, to be reimbursed the full amount of his Survivor Benefit Plan (SBP) premium overpayment.

APPLICANT STATES:  He was divorced in 1986.  No one told him the divorce decree had to be sent to the Defense Finance and Accounting Service (DFAS).  Deductions were not stopped until 1998.  He includes a copy of his Retiree Account Statements from 6 March 1996 and 5 December 1997 as supporting documents.

EVIDENCE OF RECORD:  The applicant's military records show:

He was inducted into the Army on 1 August 1961.  He retired on 1 September 1981.  At the time he elected to participate in the SBP, “spouse only” coverage.

The applicant apparently was divorced in 1986.  It appears he may have notified the Army Finance and Accounting Service of his divorce around June 1988; however, SBP spouse costs continued to be deducted from his retired pay until January 1998.  At that time it appears the applicant may have requested a refund from DFAS, which, due to the 6-year statute of limitations imposed by the Barring Statute, refunded costs retroactive only back to February 1992.

Public Law 92-245, the SBP, enacted 21 September 1972, 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.  

Title 32, U. S. code, section 3702, prohibits the payment of a claim against the Government unless the claim is received by the Comptroller General within 6 years after the claim accrues.

In the processing of this case, an advisory opinion was obtained from the Army Retirement Services Office.  That office opined that they saw no basis to support the applicant’s request.  It noted that each issue of “Army Echoes” includes text which informs retirees of the possible result of not keeping their beneficiary information up-to-date at the Pay Center.  Each retiree has access to an installation Retirement Services Officer, whose telephone numbers are provided in each issue of “Army Echoes.”  Every retiree also has access to the DFAS-Cleveland Pay Center by toll-free telephone.  Advice could have been sought and provided.

A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond within the given time frame.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The Board concludes that as the applicant should have received numerous Retiree Account Statements which showed a deduction for SBP costs after he notified the Pay Center around 1988 of his divorce, he should have taken steps sooner than 1998 to discover how to stop those deductions.  The Barring Statute prohibits more than a 6-year refund of overpayments and the applicant has provided no evidence to show why relief should be granted. 

3.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__SAC___  __SLP___  __EJA__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998013286	
SUFFIX		
RECON		
DATE BOARDED	19990610	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	128.18	
2.		
3.		
4.		
5.		
6.