PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           23 February 2000                   
	DOCKET NUMBER:   AR1999027601

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

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Raymond J. Wagner		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his Survivor Benefit Plan (SBP) debt be cancelled and that he be disenrolled from the SBP and reimbursed all premiums paid.  (His application is dated 4 May 1999).

3.  The applicant states that the VA stopped deducting SBP premiums from his disability pay in 1996 without his authorization.  When it was restarted it created an indebtedness of about $588.00.  He feels he should not be charged for the VA’s error.  He is currently incarcerated; his wife is getting 90 percent of his pay and the VA is withholding the 10 percent due him to pay this debt.  

4.  The applicant’s military records show that he retired on 1 December 1979.  At that time he elected spouse and children SBP coverage.  

5.  On an unknown date the applicant divorced.  The divorce decree is not available.  He remarried on an unknown date.

6.  On an unknown date the applicant apparently was determined to be 100 percent disabled by the VA and began to draw disability compensation in lieu of retired pay.  At this time, the VA remitted his SBP premiums to the Defense Finance and Accounting Service.  For an unknown reason and without his authorization, the VA stopped deducting his SBP premiums.  When the deductions were restarted around April 1999, almost $600.00 in back premiums became due.

7.  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. 

8.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act, dated 8 September 1982, established SBP for former military spouses. 

9.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

10.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees retired for more than 2 years as of 17 May 1998 had a one-year period, until 16 May 1999, to withdraw from the SBP.  The spouse’s concurrence is required.  No premiums will be refunded to those who opt to disenroll.  

11.  On 20 December 1999, the Board requested the applicant provide additional documentation, to include his divorce decree and marriage certificate and a statement from his spouse concurring with his request for disenrollment.  He did not reply within the given time frame.

CONCLUSIONS:

1.  Since the applicant signed his application on 4 May 1999, the Board would normally consider his request for disenrollment under the provisions of Public Law 105-85 (without a retroactive refund).  The Board understands he has a certain lack of freedom at this time; however, because the requested documents have not been provided the Board has insufficient information to do so.

2.  The Board does agree with the applicant’s contention he should not be charged for the VA’s error.  It would not be appropriate to refund what has already been collected.  That amount would have been deducted from his disability compensation even if the error had not occurred, albeit in smaller “bites.”  However, it would be an injustice not to cancel the remaining debt.

3.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by canceling the debt charged against the applicant for overdue SBP premiums.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__rvo___  __eb____  __rjw___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999027601	
SUFFIX		
RECON		
DATE BOARDED	20000223	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.03	
2.	128.00	
3.		
4.		
5.		
6.