PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           28 February 2002                   
	DOCKET NUMBER:   AR2001064662

	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	
	Ms. Celia L. Adolphi		Member	
	Mr. John T. Meixell		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 records be corrected to show he did not enroll in the Survivor Benefit Plan (SBP) and that all premiums deducted from his retired pay be refunded.

3.  The applicant states that he was drawing disability from the Department of Veterans Affairs (VA) when the Army retired him for medical reasons in 1997.  They started taking SBP out without his consent.  He tried to get them to stop it in 1999 but he did not hear any more from the Army until recently.  He knew his service-connected illnesses were getting more severe and the VA would upgrade his disability rating.  If he dies, his wife will get Dependency and Indemnity Compensation.  The applicant’s spouse has concurred with the applicant’s request to terminate his SBP enrollment.

4.  The applicant’s military records are not available.  Information contained herein was obtained from Board Proceedings dated 22 May 1996 (docket number AC94-07810) and his Physical Evaluation Board (PEB) proceedings.

5.  After having had prior service, the applicant enlisted in the Army National Guard (ARNG) on 20 October 1972.  He was ordered to active duty in support of Operation Desert Shield/Storm where he developed a chronic cough and fatigue. While still on active duty, he went before a PEB and was found to be physically fit for retention.  He was released from active duty on 6 November 1992.  On         23 November 1992, his ARNG unit commander requested a determination regarding whether or not the applicant could continue his service in the ARNG.  A physical profile dated 13 March 1993 indicated the applicant was not qualified for retention due to pulmonary sarcoidosis and asthma.  On 1 May 1993, he was discharged from the ARNG and the Reserve of the Army by reason of medical unfitness.

6.  Effective 18 November 1992, the VA awarded the applicant a combined 40 percent disability rating for pulmonary sarcoidosis (30 percent), a skin condition (10 percent), hemorrhoids (0 percent), and bilateral hearing loss (0 percent).  He was denied service connection for tinnitus and an anxiety condition.

7.  The applicant applied to the Board to correct his records to show he received a medical retirement or separation.  The Board granted relief on proceedings dated 22 May 1996, discharging him from the ARNG with a 30 percent disability rating, placing him on the TDRL effective 2 May 1993, and directing him to undergo a TDRL re-evaluation as soon as possible.  The Defense Finance and Accounting Service (DFAS) confirmed he began drawing retired pay effective      1 September 1996.  The applicant underwent a TDRL re-evaluation and, on         11 September 1997, a PEB found the applicant unfit for retention due to chronic sarcoidosis – type III clinically stable with low dose 10mg Prednisone with a      30 percent disability rating.  He was removed from the TDRL on 14 October 1997 and permanently retired due to disability effective 15 October 1997.  
8.  By letter dated 14 October 1997, the applicant was advised that DFAS would contact him in the near future concerning retired pay and that he should contact the nearest military installation to obtain a new identification card for himself and his family members.  Enclosed with the letter were his retirement orders and his Certificate of Retirement.

9.  It is not known how DFAS coordinated with the applicant concerning his retired pay; however, DFAS has indicated that they do not have a Data for Payment of Retired Personnel, DD Form 2656, (section VII of which contains SBP enrollment information) on file for him.

10.  Effective 1 March 2000, the VA increased the applicant’s disability rating to
100 percent.

11.  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.  Failure to make any election defaults to automatic participation.

12.  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.  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.

13.  Title 10, U. S. Code, section 1450(e)(1) provides that if an SBP annuity is not payable because the 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.

CONCLUSIONS:

1.  Through Board action in 1996, the applicant was placed on the TDRL and began to draw retired pay effective 1 September 1996.  It appears he may not have been properly counseled concerning the SBP at that time.  It appears he never submitted a DD Form 2656; therefore, he was automatically enrolled in  the SBP.  His spouse received SBP protection from 1 September 1996.  Until     1 March 2000, when the VA increased the applicant’s disability rating to 100 percent, she would have received the SBP annuity had he died.

2.  With the passage of Public Law 105-85, the applicant had a one-year opportunity (from 1 September 1998 through 31 August 1999) to disenroll.  The applicant contends that he tried to get the SBP stopped on an unknown date in 1999 because he felt the VA would soon increase his disability rating and his spouse would then receive DIC rather than the SBP annuity if he should die.  The Board finds this contention reasonable, as his disability rating was increased to 100 percent in March 2000.

3.  It would be equitable to show that the applicant terminated his enrollment in the SBP effective 1 June 1999 (midway through the year, within his one-year opportunity to disenroll, and nine months prior to the date the VA increased his disability rating to 100 percent).  Premiums paid during the period 1 September 1996 through 1 June 1999 are not refundable; the applicant’s spouse received SBP protection during this time.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant disenrolled from the SBP effective 1 June 1999.

2.  That the applicant be refunded any SBP premiums paid during the period        1 June 1999 to the present.

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

BOARD VOTE:  

___rvo__  __cla___  __jtm___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001064662	
SUFFIX		
RECON		
DATE BOARDED	20020228	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.03	
2.		
3.		
4.		
5.		
6.