ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: . BOARD DATE: 12 July 2019 DOCKET NUMBER: AR20160014441 APPLICANT REQUESTS: reconsideration of her previous request to * to change the former service member's (FSM) Survivor Benefit Plan (SBP) to children only * remission of SBP debt APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Pay Adjustment Authorization * notes from applicant * Waiver/Remission of Indebtedness Application * Direct Remittance Account Computation Audit Sheet * letter from Defense Finance and Accounting Service (DFAS) * applicant's monthly payments * Veteran's Group Life Insurance (VGLI) information * benefits received from Veterans Affairs (VA) * DD Form 149 from 2014 * letter to Board President 2014 * Power of Attorney FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20140011119 on 17 March 2015. 2. The applicant, the spouse of the FSM, states: * she does not believe she fully understood the cost of SBP premiums * they are causing a hardship on the family * she has power of attorney for his affairs due to Traumatic Brain Injury (TBI) * the TBI is a result of a stroke he had while on Active Duty * she has enclosed a letter to the President of the Board so members can better understand the financial hardship the payment of SBP at the spouse and children rate will cause * it was not until they received the FSM's retirement account statement that they knew what the actual dollar cost of the election was * she is aware if the election is changed to children only it could have a greater negative impact on her family finances and will put her at risk 3. The applicant provided personal notes and a self-authored letter to the President. They say, in part: * they ask the Board to please help them out with this stressful situation * the debt continues to incur interest * they tried to fill out the application to the best of their ability * they originally filed an application in 2014 and was told to refile in 2016 because correction and remission couldn't be done until 2016 * the FSM was not allowed to travel due to his serious medication condition * his out processing was done through the local National Guard State Command * they went over the information for SBP and Dependency Indemnity Compensation and it got confusing * the applicant continued to state she did not want any money to come out of the FSM's VA check or his retirement check * their budget was going to be tight * she heard the SBP was going to be free and not to worry if anything happened to the FSM * they agreed * what really was meant about "free" was if he passed away the premiums would stop and after 5 years the premiums would be done * she didn't know about the premiums until they got the bill * they cannot afford the premiums now much less for the next 2 to 5 years * the Board's support in this issue would be greatly appreciated 4. An e-mail from DFAS indicates the FSM requested termination of the SBP between the 24th and 36th month of coverage effective 10 May 2016. The FSM waived all military retired pay to receive full VA Waiver effective 1 April 2014 which created an SBP Direct Remittance. There is a current direct remittance balance for the period 1 April 2014 through 10 May 2016 in the amount of $5,625.29 and it is incurring interest. 5. Because the SBP has been terminated the only matter before the Board is remission of the SBP debt. 6. The applicant provides a Power of Attorney (POA) from the FSM. The POA expired in December of 2014; however, the applicant signed the application as well. 7. The FSM was medically retired from the Army on 25 March 2014. He completed a DD Form 2656 (Data for Payment of Retired Personnel) on 28 January 2014. He elected coverage for SBP based on his full gross pay for his spouse and his children. 8. The FSM received a letter from DFAS dated 7 July 2016 stated he owed $4,810.57 for SBP. The applicant completed a DD Form 2789 (Waiver/Remission of Indebtedness Application) on behalf of the FSM in 2016. The day and month are illegible. 9. She also completed a DD Form 139 (Pay Adjustment Authorization) on 1 August 2016, which states, in part: * the FSM had three strokes starting on 20 May 2011 * when they did the SBP brief, it was made clear that they wanted nothing that added expense to the family * they didn't want anything that would amount to monies being taken from the FSM's retirement or VA check * if there was a cost to the SBP they did not want it * they were told it did not cost anything since they opted for the VA benefits over retirement pay * they received a bill for SBP immediately * she went to the Maine Army National Guard for assistance * the Soldiers and civilians in Maine tried to help them any way they could * that's ultimately why she made an application to the ABCMR in 2014 * she talked to an individual in DFAS * after a long conversation the DFAS employee told her not to pay the bill and cancel the SBP in April of 2016 and ABCMR could waive the balance due * they never made a single payment to the SBP * the expense would cause undue hardship to their family * she has insurance through VGLI in the amount of $400,000 and ASMBA for $100,000 in the event the FSM should pass away * they are requesting the debt be completely waived 10. According to a Direct Remittance Account Computation Audit Sheet, the SBP for the FSM was terminated effective 10 May 2016. There is a remaining balance on the account of $4,810.57. 11. The DFAS website states, eligible Retirees can withdraw from SBP due to qualifying VA disability if the retiree has a service connected disability rated by the VA as totally disabling for 10 or more continuous years; or the retiree has had a total disability rating from the VA for at least 5 continuous years immediately following the last date of active duty. 12. Public Law 105-85, 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. No refund of premiums are paid to those who disenroll. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, the Soldier’s medical processing and medical retirement, the election for and then withdrawal from SBP coverage, the current debt amount and the financial records provided by the applicant. The Board found that due to the Soldier’s medical condition at the time of his out-processing and the applicant’s statement pertaining to their understanding of costs for the coverage, that it would be unjust to hold them accountable for the debt incurred for premiums prior to the withdrawal of SBP and determined that remittance of that debt is appropriate. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted.? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 remitting the debt currently assessed against the service member for unpaid SBP premiums for the period of coverage between April 2014 and May 2016. 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. ADMINISTRATIVE NOTE(S): N/A REFERENCES: 1. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP 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. An election, once made, was irrevocable except in certain circumstances. This law, as amended, also provides that every member having a spouse and/or child(ren), who retired/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elects otherwise before retirement or transfer to the retired list. 2. 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. Reservists who elected an option under the RCSBP will continue to have the Reservist Portion cost deducted from their retired pay. 3. Title 10 U.S. Code (USC), section 1448, required notice to a spouse if a member elected not to participate in the SBP. The statute also provided for automatic enrollment for spouse coverage at the full base amount unless a member affirmatively declined to participate in the SBP prior to receiving retired pay. Title 10, USC, section 1448, was amended effective 1 March 1986 to require written concurrence by the spouse in a member's decision to decline the SBP or elect spouse coverage at less than the full base amount. 4. DFAS website at https://www.dfas.mil/retiredmilitary/provide/sbp/change.html states, eligible Retirees can withdraw from SBP due to qualifying VA disability if: a. The retiree has a service connected disability rated by the VA as totally disabling for 10 or more continuous years; or b. The retiree has had a total disability rating from the VA for at least 5 continuous years immediately following the last date of active duty. Withdrawal is permitted because the surviving spouse will likely qualify for Dependency and Indemnity Compensation (DIC) benefits from the VA and the retiree’s death will be presumed to be from service-connected reasons. c. A request for withdrawal requires the written consent of the beneficiary. Upon the death of the retiree, the surviving spouse will be entitled to a refund of the SBP premiums that were paid. ABCMR Record of Proceedings (cont) AR20160016959 3