PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           7 December 2000                   
	DOCKET NUMBER:   AR2000050029

	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.  

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

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Mr. John P. Infante		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 reconsideration of the prior Board action and rescission of its favorable decision of 16 June 1999 changing his children only Survivor Benefit Plan (SBP) coverage to spouse and children coverage.

3.  The applicant states that he did not know he would have to pay a large sum of money to get the SBP changed.

4.  The applicant’s military records show that he was placed on the Temporary Disability Retired List on 30 October 1981 and at that time elected SBP children only coverage (he was not married).  He was permanently retired on 26 April 1984.  He married on 23 July 1984.  He attempted to add his spouse to his SBP in a timely manner but for an unknown reason the Finance Center failed to add her.  On 3 August 1997, he requested that his SBP be changed to show he elected SBP spouse coverage.  

5.  An advisory opinion was obtained in that case, which recommended approval of the applicant’s request provided he agreed to pay all SBP costs due.  A copy of the advisory opinion was provided to him but he failed to respond.  However, in a later phone conversation with an analyst from the Board he inquired as to how much back cost was involved.  The Board wrote back to him that it would cost him approximately $6,700 in back premiums.  He failed to respond to that letter.  The Board approved his request on 16 June 1999, docket number AR1999016260, couching the wording of the recommendation so the Defense Finance and Accounting Service (DFAS) would collect the costs provided he agreed to pay those costs.  

6.  Subsequent to approving his initial request for a change to his SBP election, DFAS calculated his SBP debt and determined he would owe approximately $6,000.  It is apparently DFAS policy to start action to collect such costs without further contacting the individual concerning his willingness to pay such costs.  DFAS therefore took action to collect that debt.

7.  The applicant has stated that collection of the SBP debt would cause a financial hardship. 

CONCLUSIONS:

1.  The applicant was advised by letter of the adverse financial implications if his request for spouse SBP coverage was approved.  He failed to respond to the letter.  The Board, believing that it had worded the recommendation in a way that would have offered the applicant one more opportunity to agree or not agree to paying these costs before effecting the correction, approved his request.  However, DFAS policy precluded this solution and since then the impact of the applicant’s failure to respond to the Board’s letter has caused him to ask that the favorable decision in his case be rescinded.
2.  Notwithstanding the foregoing, it is the general policy of the Board not to cause an applicant to be worse off than he or she would have been had the Board not acted in the case.  Therefore, as a matter of equity, it would be appropriate to rescind the Board’s previous approval in this case and place the applicant in the same status he was in before he applied to the Board in August 1997.

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by: 

	a.  rescinding the ABCMR Proceedings dated 16 June 1999 concerning the applicant; and

	b.  terminating any effort to recoup SBP costs from the applicant and returning any monies already recovered from him resulting from the ABCMR Proceedings dated 16 June 1999.

BOARD VOTE:  

__rvo___  __ewl___  __jpi___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000050029	
SUFFIX		
RECON		
DATE BOARDED	20001207	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.