MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 March 2001                   
	DOCKET NUMBER:   AR2000049311

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Roger W. Able		Chairperson	
	Mr. Allen L. Raub		Member	
	Ms. Gail J. Wire		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, that the debt for the Survivor Benefit Plan (SBP) premiums he owes be cancelled.

APPLICANT STATES:  That they are getting statements every month informing him that he owes back SBP premiums.  They were not told that the statements were bills until after he made several phone calls.  They were not informed that
the SBP had to be paid up to the date of cancellation (he cancelled it in June 1998) in order to terminate it.  Had they known they would have paid it up and terminated it at the same time.  He provides his Survivor Benefit Plan (SBP) Termination Request, DD Form 2656-2, as supporting evidence.

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

He received an early length of service retirement on 1 April 1995 after completing over 16 years of creditable active service.  At that time he completed a Data for Payment of Retired Army Personnel, DA Form 4240, and enrolled in the SBP for spouse and children coverage, reduced base amount.  Part V of the DA Form 4240 states “Your SBP election is irrevocable.”

Effective July 1996, the applicant waived his retired pay in favor of VA disability compensation.  Since SBP costs could no longer be deducted from his retired pay, the Defense Finance and Accounting Service (DFAS) apparently began to bill him for direct remittance of the premiums.

On 3 June 1998, the applicant, with his spouse’s concurrence, requested termination of his SBP enrollment.  Section III of the DD Form 2656-2 states that no refund of costs already paid for SBP coverage will be made.  His SBP enrollment was terminated effective 1 July 1998.

DFAS is apparently still billing the applicant for unpaid SBP costs in the amount of approximately $1,200.00.

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.  An election, once made, is irrevocable except under circumstances prescribed by law.

Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from SBP.  Members retired for more than two years as of 17 May 1998 were authorized a one-year opportunity (17 May 1998 through 16 May 1999) to disenroll.  The spouse’s concurrence is required.  No premiums will be refunded to those who opt to disenroll.

Title 10, U. S. Code, section 1452(g)(1) provides that a person who has elected to participate in the SBP and who is suffering from a service-connected disability rated by the VA as totally disabling and has suffered from such disability 
while so rated for a continuous period of 10 or more years may discontinue participation in the Plan.  Under the current provisions of this subsection, the surviving spouse of a member who discontinues participation in the SBP in accordance with this subsection is refunded any amount deducted from the retired pay of that person upon the member’s death.

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 this requirement.

2.  The applicant enrolled in the SBP upon his retirement on 1 April 1995.  Until he waived his military retired pay in favor of disability compensation effective July 1996, his SBP premiums were being deducted from his retired pay.  After his military retired pay was waived, his family was still protected by the SBP.  That protection had to be paid for in some manner and DFAS billed him for direct remittance of the premiums.  

3.  Since the applicant did not provide the billing documents he received from DFAS, the Board cannot determine how he could have misunderstood that they were something other than bills for SBP premiums that could no longer be deducted from his military retired pay since the military was no longer disbursing that pay.  

4.  DFAS could not cancel the applicant’s SBP any earlier than May 1998 because his SBP election was irrevocable, as clearly stated on the DA Form 4240, until Public Law 105-85 was enacted.  The applicant’s SBP was terminated in June 1998.  He was billed for the SBP premiums for the period July 1996 through June 1998 because his family had been protected by the SBP during that time yet the premiums for that protection had not been paid.  Had he died during that period, his family would have received the SBP annuity.  The Board concludes that there is no error or injustice in the applicant being billed for these premiums.

5.  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

__rwa___  __alr___  __gjw___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000049311	
SUFFIX		
RECON		
DATE BOARDED	20010327	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.03	
2.		
3.		
4.		
5.		
6.