PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           23 May 2002                   
	DOCKET NUMBER:   AR2002067415

	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. Mark D. Manning		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Karen Y. Fletcher		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, in effect, that his records be corrected to show he never enrolled in the Survivor Benefit Plan (SBP).

3.  The applicant states that the Department of Veterans Affairs (VA) awarded him 100 percent service-connected disability in May 1991.  He declined military pay when he turned age 60 in favor of VA compensation.  His wife will never be eligible for the SBP.  As supporting evidence he provides:  notes on plain bond paper dated 18 June 2001; notes on plain bond paper dated 14 December 1999; a 27 October 1999 letter to the Defense and Accounting Service (DFAS); a Survivor Benefit Plan (SBP) Termination Request, DD Form 2656-2 dated            12 April 1999; a premium bill from DFAS dated September 1999; an undated letter from DFAS – Cleveland Center (DFAS-CL); a 19 February 1999 letter from him to DFAS – CL; a 2-page 15 December 1998 letter from him to DFAS – CL; a 16 April 1998 letter from him to DFAS-CL; a premium bill dated February 1998; a copy of an envelope from DFAS-CL; and a premium bill dated November 1997.

4.  The applicant's military records show he was born on 25 March 1937.  After having had prior service, he enlisted in the Army National Guard on 9 April 1962. His notification of eligibility for retired pay at age 60 (his 20-year letter) is dated   7 November 1977.  On 21 March 1979, he was given a permanent profile of P2 and H2 for arteriosclerotic heart disease, demonstrated by angiography, involving mainly the left anterior descending coronary artery currently asymptomatic and hearing loss.  He was discharged from the Army National Guard on 20 April 1991 and transferred to the Retired Reserve.

5.  On 30 September 1996, the applicant completed a Data for Payment of Retired Personnel, DD Form 2656.  In section VII, he checked that he elected SBP coverage for spouse only, full base amount.  

6.  By letter to DFAS dated 15 December 1998, the applicant noted that he had been trying to cancel the SBP since May 1997.

7.  On 12 April 1999, the applicant completed a DD Form 2656-2 requesting termination of his SBP.  His spouse signed the form concurring in his request.

8.  Public Law 92-425, 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.  Premiums are normally deducted from retired pay.  When retired pay has been waived in lieu of VA compensation, premiums are normally paid by direct remittance by the member.

9.  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.  The spouse’s concurrence is required.  No premiums will be refunded to those who opt to disenroll.  The effective date of termination is the first day of the first calendar month following the month in which the election is received by the Secretary concerned.

10.  Title 10, U. S. Code, section 1450(e)(1) provides that if an SBP annuity is not payable because the Dependency and Indemnity Compensation (DIC) payment is greater, then any amount deducted from the retired pay of the deceased member shall be refunded to the surviving spouse or former spouse.

11.  Title 38, U. S. Code, section 1311(a) provides that DIC shall be paid to a surviving spouse at the monthly rate of $850.00.  The rate shall be increased by $185.00 in the case of a veteran who at the time of death was entitled to receive compensation for a service-connected disability that was rated totally disabling for a continuous period of at least eight years immediately preceding death.  Only periods in which the veteran was married to the surviving spouse shall be considered.

CONCLUSIONS:

1.  The evidence of record shows that the applicant requested enrollment in the SBP when he completed his DD Form 2656.  Therefore, even though he terminated his enrollment in April 1999 DFAS properly billed him for the premiums due for the coverage his spouse enjoyed from March 1997 – April 1999.

2.  However, the Board believes that the applicant was improperly counseled concerning SBP enrollment.  He was already drawing 100 percent VA compensation.  His spouse would get DIC rather than SBP at his death.  Had an informed counselor told the applicant this at the time, the Board believes it is most likely the applicant would have declined to participate in the SBP.

3.  Since his spouse will not receive SBP upon the applicant’s death, she would instead receive a refund of all SBP premiums paid.  Although the debt is valid, the Board believes there is little sense in requiring the applicant to pay the debt now only to have the Government reimburse it to his spouse upon his death.  Given the conclusion that the applicant was improperly counseled, it would be equitable to correct the applicant’s records to show he declined to participate in the SBP thus, in effect, voiding this debt.

4.  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 showing that the applicant completed his DD Form 2656 on 30 September 1996 and declined, with his spouse’s concurrence, to participate in the SBP, making the debt for SBP premiums invalid.

BOARD VOTE:  

__mdm___  __le____  __kyf___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Mark D. Manning
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2002067415	
SUFFIX		
RECON		
DATE BOARDED	20020523	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.03	
2.		
3.		
4.		
5.		
6.