IN THE CASE OF: BOARD DATE: 2 February 2016 DOCKET NUMBER: AR20150005273 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests reinstatement of his enrollment in the Survivor Benefit Plan (SBP). 2. The applicant states, in effect, the following: a. He retired in August 2007 as an Army officer and elected to enroll into SBP. b. He is 100 percent disabled and upon his demise, his wife would receive Dependency and Indemnity Compensation (DIC); therefore, because of this dual coverage and statutory offset, he asked the Defense Finance and Accounting Service (DFAS) to be allowed to withdraw from SBP beginning in 2012. For approximately 20 months, DFAS did nothing to honor his request and continued to bill him for the monthly premiums. c. In January 2014, he met with a Retirement Services Officer (RSO) who advised him to continue in SBP. Following this advice, he sent DFAS a check in the amount of $1,836.36, in March 2014, to cover his arrears and asked to remain in SBP. d. DFAS cashed his check and he assumed everything was fine; however, from that point on he never received any monthly premium notices. In August 2014, he contacted DFAS as to why and on 24 September 2014, DFAS informed him that his request for withdrawal from SBP was effective 1 November 2013. He was also informed he had 30 days from 1 November 2013 to appeal that decision. e. He questions how he can be held to a 30-day appeal deadline of 1 November 2013, when he first learned of the decision on 24 September 2014. He also questions why DFAS cashed his check in March 2014, when he was supposedly already removed from SBP. f. It is his desire to remain in the SBP and to pay any and all further arrears to bring his account up to date. 3. The applicant provides: * his marriage certificate * two letters from DFAS, each dated 24 September 2014 * a letter from [applicant] to DFAS, dated 21 January 2013, with a signed affidavit from his spouse, D____, dated 19 January 2013 * DFAS-CL Form 1077 (Survivor Benefit Plan (SBP) Withdrawal Consent, dated 1 August 2013 * a letter from DFAS to the Veterans Administration (VA) Regional Office, Philadelphia, Pennsylvania, dated 30 August 2013, with enclosure to certify the applicant's VA disability rating * three letters from [applicant] to DFAS, respectively dated 14 January 2014, 27 August 2014, and 6 October 2014 CONSIDERATION OF EVIDENCE: 1. The applicant was born on 6 August 1947. He and his spouse, D____, were married on 22 July 1997. 2. Orders 96-120-015, issued by Headquarters, U.S. Army Reserve Command, Atlanta, Georgia on 29 April 1996, assigned him to the Retired Reserve with an effective date of 16 June 1996 in the rank/grade of colonel (COL)/O-6. 3. His record does not contain a Notification of Eligibility for Retired Pay at Age 60 (20-year letter) notifying him of his eligibility for retired pay; however, it appears he attained the sufficient amount of service required for a non-regular retirement. He turned 60 years of age on 6 August 2007. 4. He completed a DD Form 2656 (Data for Payment of Retired Personnel), on 22 September 2006, wherein he indicated he was married to D____ and they had a dependent child. In Section IX (SBP Election), he elected coverage for spouse only, based on his full gross retired pay. His spouse concurred with his election. 5. He submitted a letter to DFAS, dated 21 January 2013, wherein he elected withdrawal from the SBP effectively immediately due to the fact that he is 100 percent disabled and has been so for five consecutive years since his retirement in August of 2007. He also states that this status will afford his spouse VA DIC benefits. He also attached a notarized affidavit from his spouse, dated 19 January 2013, concurring with his withdrawing from SBP. 6. He submitted a DFAS-CL Form 1077, dated and signed by him and his spouse on 1 August 2013, consenting to the following: a. In Part I (Consent for VA Disability Rating): "I hereby give my consent for the DFAS-Cleveland [office] to request from the VA information concerning my disability rating by that office;" and b. In Part II (Consent for SBP Withdrawal): "After having reviewed the SBP withdrawal fact sheet (DFAS-CL 1741/116A) on the advantages in participating in the plan and disadvantages in withdrawing from the plan, I hereby request withdrawal from the plan." 7. DFAS submitted a letter to the VA Regional Office, Philadelphia, Pennsylvania, dated 30 August 2013, requesting verification of the applicant's disability rating. 8. On 23 September 2013, the VA adjudication officer verified that the applicant was classified as totally disabled by the VA and had been on a continuous basis since 13 November 2006. 9. He submitted a letter to DFAS on 14 January 2014, wherein he stated he continues to get billed for SBP (premiums) after he requested on numerous occasions to withdraw from the plan. He further states he sent the required paperwork per an earlier request by DFAS. He reiterated that he is 100 percent disabled and his wife would receive DIC upon his demise. He again asked that the situation be rectified and allow him to withdraw from SBP. 10. In a letter to DFAS, U.S. Military Retirement Pay office, dated 27 August 2014, he stated the following: a. For two years, he sent letters requesting withdrawal from SBP and no action was ever taken on those requests. b. In the beginning of 2014, he spoke to an RSO who advised him to continue his participation in the SBP. Based on his advice, he tendered the total arrears in the amount of $1,836.36 to DFAS in March 2014. His obvious intent was to continue in the SBP. c. He never received any monthly billings. He contacted this office and was informed that he was withdrawn from SBP. He asked if he could appeal the decision and was told he had to file an application with the Army Board for Correction of Military Records (ABCMR). He submitted an application on 16 July 2014. d. On 11 August 2014, he received a letter from the ABCMR and was informed they could not process his application since he had not exhausted all administrative remedies. He emphasized he wanted to continue in SBP and was willing to contribute any additional arrears that may have accrued since March 2014. 11. By letter dated 24 September 2014, DFAS officials notified him, by referring to his 27 August 2014 letter, that in order to have his SBP reinstated, he had 30 days from the initial withdrawal date to notify them, which was 1 November 2013. They also stated the 30 days had expired. 12. In another letter from DFAS to him, dated 24 September 2014, officials advised him they were unable to process his request for reinstatement in the SBP and that the 30 day time period to cancel his request to withdraw from SBP had expired in November 2013. They informed him that they received his initial withdrawal request 30 January 2013, received verification of his total disability rating from the VA on 4 October 2013, and processed his withdrawal request on 29 October 2013. They also enclosed a DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) if he wanted to submit an appeal of their decision. 13. He sent another letter to DFAS, on 6 October 2014, stating he never received a notification informing him he had 30 days to withdraw his request of withdrawal from SBP as outlined in their 24 September 2014 letter. He reiterated his desire to be reinstated and he would contact his congressman for resolution. 14. A DFAS records review revealed the applicant did send $1,836.36 for payment of premiums (including interest) that were not paid by him from October 2012 to October 2013 and SBP was withdrawn in November 2013. It also reveals a response to the applicant's congressman stating the process, his status, and that he could appeal to this Board. 15. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. 16. Public Law 96-402, enacted 9 October 1980, permits retirees who are rated totally disabled by the VA, with a spouse who will be entitled to DIC, to withdraw from SBP provided: * they have held the total disability rating for a period of at least 5 continuous years if the disability rating was awarded at retirement; or * they held the disability rating for at least 10 continuous years if the disability rating was awarded and became effective later than the date of the member's retirement; and * a request for withdrawal requires the written consent of the member's beneficiary or beneficiaries 17. Title 10, U.S. Code, Section 1452, further states the Secretary concerned shall furnish promptly to each retiree who files a request to withdraw from SBP a written statement of the advantages of participating in SBP and the possible disadvantages of discontinuing participation. A retiree may withdraw a request made if it is withdrawn within 30 days after having been submitted to the Secretary concerned. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for reinstatement of his enrollment in the SBP was carefully considered. 2. The evidence of record shows the applicant elected to participate in the SBP for spouse coverage, based on the full amount of his retired pay, at the time he submitted a DD Form 2656 on 22 September 2006. He was assigned to the Retired Reserve and could apply for retirement pay after he reached 60 years of age on 6 August 2007. 3. His record indicates the VA determined him to be 100 percent service-connected disabled since 13 November 2006. He elected to withdraw from SBP, with his spouse's concurrence, on 21 January 2013 due to the fact he is100 percent disabled and his spouse would receive DIC upon his death. 4. He elected to continue SBP based on the advice of an RSO and sent DFAS a check in March 2014 for arrears and asked to remain in SBP. He contends he never received any notification from DFAS on his request for withdrawal or continuation. He contacted DFAS for his status. 5. By several letters, dated 24 September 2014, DFAS officials notified him he was withdrawn from SBP on 29 October 2013, after confirmation of his total disability rating by VA, and he had 30 days from the withdrawal date to decline his withdrawal and be reinstated into SBP. It also stated his 30 days had expired and he would have to appeal to the ABCMR. 6. The applicant contends he never received a notification informing him he had 30 days to withdraw his request of withdrawal from SBP. 7. There is a presumption of government regularity in the conduct of its business. The applicant requested withdrawal of SBP based on his total disability rating by the VA in concert with applicable law. However, the applicant provides a letter by DFAS explaining he had been withdrawn from SBP, had 30 days to decline his withdrawal and that the 30 days expired in November 2013, on 24 September 2014, some 10 months after his suspense. 8. As a matter of equity, in light of the suspected tardiness of the DFAS letter; in accordance with Title 10, U.S. Code, Section 1452, which states a retiree may withdraw a request within 30 days of notification of withdrawal, and his willingness to pay the premiums that have accrued since, the applicant's record should be corrected to show he elected to rescind his withdrawal request and remain in SBP within the 30 day timeframe. BOARD VOTE: ____X____ ____X____ ____X____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing: a. the applicant submitted a written request rescinding his withdrawal request from SBP on 2 November 2013, and b. DFAS audits his account and renders him a bill in the amount of premiums owed to be in good standing and continues to bill him premiums in accordance with applicable laws and regulations. ____________X___________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20120001121 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005273 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1