IN THE CASE OF: BOARD DATE: 15 September 2016 DOCKET NUMBER: AR20150005718 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ____X____ ___X_____ ___X_____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 15 September 2016 DOCKET NUMBER: AR20150005718 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that Army Human Resources Command reduced the widow's annuity on the date of their 2012 notification letter without recoupment of the overpayment. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to restoring the widow's entitlement to the Survivor Benefit annuity at the active duty rate or retroactive entitlement to the higher rate. 3. As a result of this correction, the Defense Finance and Accounting Service shall be notified of the Board's determination regarding the applicant's overpayment of the annuity. Accordingly, this action serves to waive or cancel her annuity indebtedness to the government based on erroneous overpayments. ____________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. IN THE CASE OF: BOARD DATE: 15 September 2016 DOCKET NUMBER: AR20150005718 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, the deceased former service member's (FSM) daughter, requests that: a. her mother's Survivor Benefit annuity be restored to the level to which she was entitled to prior to the rate decrease in 2012; and b. her mother be provided back pay for the difference between the higher rate she was initially awarded and her current reduced rate. 2. The applicant states: a. The FSM, a lieutenant colonel (LTC) in the Army National Guard (ARNG), died on 11 January 2003 while running on base in preparation for his annual Army Physical Fitness Test. [His duty status was determined by the State ARNG to be ?non-duty status.?] b. Between 2003 and 2009 the widow appealed the FSM's duty status and line of duty (LOD) determination. c. In 2009, the FSM?s LOD and duty status were changed to show the FSM death was in the line of duty and during a period of active duty. Based on this determination, the U.S. Army Human Resources Command (HRC) granted the widow benefits [full active duty rate for a LTC] and she relied on that determination to her subsequent detriment. With the receipt of full benefits she retired from her career as a teacher and relied on her new [as of 2009 full active duty rate for a LTC] monthly annuity. d. The widow was given 10 certified copies of the death certificate indicating the FSM's status was on active duty, and was informed that the records were corrected and permanent. e. In January of 2012, the widow received a letter from the Defense Finance and Accounting Service (DFAS) and HRC stating they had changed their 2009 decision and immediately stopped the widow's monthly annuity at the active duty rate. f. Subsequently she has been unable to regain her tenure and has been forced to find part-time work in order to pay her bills. She relied to her detriment on the express promise that her benefits [annuity] would not change. For purposes of equity and good conscience, the remedy is to restore her mother's prior benefits as awarded in 2009 by HRC. g. The reason for the injustice is due to the 2012 reversal of a prior decision. The issue is not about a de novo review of circumstances, but rather the hardships placed on the widow due to her reliance of the 2009 decision and the stoppage of her monthly annuity in 2012. 3. The applicant provides: * SBP election form * Certificate of Death * Notification of Eligibility for Retired Pay at Age 60 (20-year letter) * 3 pages of e-mails * 2 Reports of Casualty * a request for assistance to Congressman Peterson with the widow's statement and assorted e-mails. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The FSM, with prior U.S. Marine Corps enlisted and commissioned active duty service, was appointed a first lieutenant in the U.S. Army Reserve (USAR) on 6 August 1983. 3. On 20 December 1988, the FSM transferred to the North Dakota Army National Guard (NDARNG) and remained in the ARNG until his death on 11 January 2003. At the time of death he had 25 years, 7 months, and 6 days of creditable service for non-regular retirement with a total of 3,319 Reserve retirement points. 4. The applicant received his 20-year letter authorizing him non-regular retired pay on 5 June 1997. 5. The FSM's death certificate shows he died on 11 January 2003 as a result of arteriosclerotic cardiovascular disease and lists his occupation as a teacher. 6. The 7 February 2003 Report of Casualty shows the FSM died of a heart attack and listed the FSM's duty status as "non-duty status". His death was found to be in the line of duty. 7. Between 2003 and 2009, the widow received a monthly annuity at the Reserve Component rate as verified by an Army HRC letter, dated 26 December 2013, to a Member of Congress. 8. The 19 February 2009 Report of Casualty shows the FSM died of arteriosclerotic cardiovascular disease with a duty status of "Active Duty for Training." 9. A 10 December 2013 Army HRC e-mail provided definitions for a Soldier's duty status and states the FSM was performing IDT training at the time of his death. His widow should be paid an annuity at the Reserve rate not the active duty rate. DFAS initially made an error and paid the widow at the active duty rate before correcting the error in 2012. 10. On HRC official responded to a Congressional inquiry outlining why the widow's benefits under the SBP changed and advised that should the widow disagree with the overpayment and reduced amount she could appeal the decision to the ABCMR. REFERENCES: 1. National Guard Regulation 350-1 (Army National Guard Training Departments of the Army and the Air Force) states all Federally recognized ARNG units will conduct at least 48 Unit Training Assemblies (UTAs) each fiscal year in a paid IDT status. Further guidance shows: Annual Training (AT) Annual Training in active duty status outside of the United States Title 10 U.S. Code (USC), section 12301 (d) when an ARNG unit is ordered to AT outside of the United States, its territories and possessions, and the District of Columbia. On the date of departure, Soldiers will enter Title 10 status and, upon return to the US, will reenter Title 32 status. This transition listing the dates will be included in orders. AT AT in Full-Time National Guard Duty DoD Instruction Number 1215.06, Enclosure 4 IDT IDT, whether paid or unpaid, in any of the several types of training in this category Title 32 USC 502(a) (1) – the purpose may also include those in sections 316, 502(e), 503, 504, and 505. 2. 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. 3. Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60. Three options were available: * Option A - elect to decline enrollment and choose at age 60 whether to start SBP participation * Option B - elect that a beneficiary receive an annuity if they die before age 60, but delay payment of it until the date of the member's 60th birthday * Option C - elect that a beneficiary receive an annuity immediately upon their death if before age 60 4. Department of Defense (DoD) Financial Management Regulation (FMR) Volume 7B, chapter 46 states that the SBP provides a monthly annuity of 55 percent of the annuity base amount, cost-of-living adjusted, to the eligible spouse or children. A Reserve Component member who dies from injuries or illness incurred or aggravated while performing IDT and death is determined to have occurred in the line of duty is entitled to coverage under the SBP program. The annuity payable for a death that occurred while performing IDT shall be the amount equal to 55 percent of the retired pay to which the member would have been entitled based on the member’s years of service at the time of death. Retired pay base computed for a Reserve Component retirement includes points for drill and other time. The Military Services will make a determination and a written finding as to whether a member’s death occurred in the line of duty while performing IDT. Debts to the United States or any of its instrumentalities incurred by the annuitant may be offset from the annuity. 5. DOD FMR Volume 7B, section 4606 provides guidance on liability. It states the annuitant is liable for debts created from the overpayment of an annuity. Section 4607 provides guidance on liquidation of debt. Upon the discovery of an overpayment, the annuitant will be provided with due process notice in accordance with Chapter 28, Section 2805 or other implementing regulations pertaining to debt collection and the method in which the overpayment is being, or may be, liquidated. The annuity payment may be reduced. An annuitant may request a waiver of indebtedness. The right to request a waiver does not constitute removal of the responsibility for repayment of the debt. If a waiver request is grant, repayment of the debt is not required. Suspension of a collection action may be authorized upon receipt of a waiver request. Refund of an amount withheld before receipt for a waiver is not authorized. When a waiver is granted, any amount collected after the receipt of the waiver request is refunded to the annuitant. 6. Title 10, U.S. Code, section 1442 (Recovery of annuity erroneously paid) states in addition to other methods of recovery provided by law, the Secretary concerned may authorize the recovery, by deductions from later payments to a person, of any amount erroneously paid under this subchapter. However, recovery is not required if, in the judgement of the Secretary concerned, there has been no fault by the person to whom the amount was erroneously paid and recovery would be contrary to the purposes of this subchapter or against equity and good conscience. 7. Title 10, USC, section 1552 states the Secretary of a military department may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice. Except when procured by fraud, a correction under this section is final and conclusive on all officers of the United States. DISCUSSION: 1. The FSM was on IDT which is duty under State control not Federal active duty service. His death was initially reported by the State as ?non-duty status? but upon appeal his status was changed to ?active duty for training? and a determination of in the line of duty was made. 2. As the FSM was on IDT, his widow was entitled to an SBP annuity based on his Reserve retirement points and years of service the FSM earned as of the date of death not as if he were retired with 20 years active federal service. The evidence shows she received the reduced Reserve annuity from 2003 to 2009 as allowed by law. 3. An error appears to have been made in the reading of the revised duty status determination (active duty for training) that led DFAS to pay the widow at the higher (active duty) rate. This error was caught 3 years later and the annuity was reduced to the Reserve rate based on his retirement points and it appears a debt to the U.S. Government was generated against the annuitant, his widow. Had the applicant been ordered to active duty in a Federal status, his widow would be entitled to payment at the active duty rate; however, the evidence of record shows he was on IDT. The annuitant is liable for debts created from the overpayment of an annuity. 4. Unless the Board determines that it would be appropriate to change the FSM's duty status to show he was on Federal active duty status, not IDT, the widow by law is not entitled to restoration of the 2009 annuity or arrears annuity payments at the active duty rate. 5. The error in the annuity calculation is attributed to human error and the widow was in no part at fault for its erroneous calculation in 2009. Holding her liable for the overpayment now debt to the government creates an injustice. Based on equity and as allowed by law the widow’s debt (overpayment of an annuity) should be waived or cancelled. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150005718 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150005718 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2