IN THE CASE OF: BOARD DATE: 31 July 2020 DOCKET NUMBER: AR20170016152 APPLICANT REQUESTS: * cancellation of back Survivor Benefit Plan (SBP) premiums * reimbursement of any and all previous SBP premiums * retroactive pay for Combat Related Special Compensation (CRSC) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: two DD Forms 149 (Application for Correction of Military Record under Provisions of Title 10, U.S. Code, Section 1552). REFERENCES: 1. Public Law 92-425, enacted 21 September 1972, repealed the Retired Serviceman's Family Protection Plan and established the SBP.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. The election must be made before the effective date of retirement or coverage defaults to automatic spouse coverage. 2. Title 10, U.S. Code, section 1448(a)(3)(A), requires spousal concurrence in any election not to participate in SBP, to provide an annuity for a spouse at less than the maximum level, or to provide an annuity for a dependent child but not for the member's spouse. 3. Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation. Retirees have a 1-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. 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. No premiums will be refunded to those who opt to disenroll. Reserve members who elected an option under the Reserve Component SBP will continue to have the Reservist Portion cost deducted from their retired pay. 4. Department of Defense 7000.14-R (Financial Management Regulation), chapter 63 (CRSC), provides special compensation to members of the Uniformed Services who have retired pay because of receiving U.S. Department of Veterans Affairs (VA) disability compensation where a portion of such VA disability compensation is the result of disabilities that are combat-related as determined by the Military Department. a. CSRC is subject to a deduction of SBP premiums, when retired pay is not adequate, for a person who has elected to participate in the SBP. b. Payments are made on the first day of the first month following the month in which the compensation accrued, provided the member is receiving VA disability compensation for a disability that has been determined to be combat-related by the Military Department. c. When the VA makes a retroactive increase in a member's VA disability compensation pertinent to a member's combat-related disabilities under CRSC, the Defense Finance and Accounting Service (DFAS) and VA will exchange data to determine the additional retroactive amount that the member is entitled to receive as the result of CRSC. DFAS will compute the additional entitlement and advise the VA in order for the VA to pay the member the appropriate additional authorized VA disability compensation. FACTS: 1. The applicant states: * he was not married when he retired on 12 September 2013 * he applied for CRSC on 29 June 2015 * he did not start receiving CRSC until 1 February 2017 2. He was a member of the California Army National Guard (ARNG) at the time of his divorce on 1 October 2008. There is no evidence of the applicant's obligation to provide SBP coverage for his former spouse in the Dissolution of Marriage Judgment, dated 2 September 2008. 3. Headquarters, California ARNG, memorandum, dated 5 November 2010, subject: Notification of Eligibility of Retired Pay at Age 60, notified the applicant of his eligibility for retired pay upon application at age 60. The SBP election form was enclosed. 4. U.S. Army Physical Disability Agency Orders D220-09, dated 8 August 2013, retired him by reason of permanent physical disability and placed him on the Retired List effective 12 September 2013 with a disability rating of 80 percent. 5. His National Guard Bureau Form 22E (Report of Separation and Record of Service) shows he was separated from the California Army National Guard on 12 September 2013 and transferred to the Retired Reserve. He completed 21 years of total service for retired pay. 6. On 21 January 2016, the U.S. Army Human Resource Command CRSC Office notified him that they were unable to verify his disabilities as combat related, stating the Physical Evaluation Board found the conditions were not combat related. 7. On 23 November 2016, the U.S. Army Human Resource Command CRSC Office approved the applicant's claim for CRSC and instructed him to keep them informed of any changes that take place regarding his CRSC-approved disability ratings. His CRSC effective date is shown as October 2013 (the first day of the first month following the month in which the compensation accrued) with a total combat-related disability rating of 80 percent. 8. An email from DFAS Retired and Annity Pay, dated 13 January 2020, confirmed the applicant is currently having SBP premiums deducted from his retired pay/CRCS compensation for child cost. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found sufficient evidence to grant partial relief. 1. The Board found sufficient evidence to grant relief regarding the CRSC issue. The applicant was approved for CRSC by HRC on 23 November 2016 with an effective date of October 2013. The decision letter was supposed to be transmitted to DFAS for payment calculation and processing. In the 13 January 2020 email, the DFAS representative indicated they did not have the orders and asked for them to be provided to process the CRSC increase along with retroactive pay. It appears the CRSC decision was erroneously not transmitted to DFAS and the applicant is entitled to the requested relief. 2. The Board found insufficient evidence to grant relief regarding the SBP issue. DFAS confirmed the applicant is currently having premiums deducted for child only SBP coverage. The DD Form 2656 is not of record. It appears that, because he has a dependent child, he was automatically enrolled in child-only SBP coverage at retirement. This would have occurred if he did not affirmatively decline SBP at retirement. See DODI 1332.42, Survivor Annuity Program Administration (23 June 2009), encl. 3, para. 2.a. The Board found insufficient evidence of error or injustice in this case as the applicant was automatically enrolled IAW DOD policy and his child(ren) have benefited from coverage since his retirement. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. 1. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by a. showing that DFAS received the timely, appropriate notification of the applicant’s CRSC entitlement, which was effective 11 October 2013. b. DFAS paying him retroactive CRSC payments he is authorized effective 11 October 2013. 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 the SBP issue. 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): not applicable. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170016152 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1