ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 September 2019 DOCKET NUMBER: AR20180014615 APPLICANT REQUESTS: Correction of his record to: * add his current spouse and dependent daughter as Survivor Benefit Plan (SBP) annuitants * remission/cancellation of his existing SBP debt APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Divorce Decree, dated 4 August 2009 * Birth Certificate, dated 22 October 2017 * Marriage Certificate, dated 18 August 2018 * Combat Related Special Compensation (CRSC) pay statement, dated 1 August 2019 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, he was unaware of the charge building up for the past 10 years. Approximately one year after completion of his medical board he was divorced, on 4 August 2009. He found out about the debt by noticing a portion of his CRSC being deducted. He called Defense Finance and Accounting Service (DFAS) to find out why, and was told he needed to remove his ex-wife. He now wishes to add his daughter. 3. A review of the applicant’s official records show the following on: * 15 January 2004 – the applicant enlisted in the Regular Army * 9 April 2008 – an informal Physical Evaluation Board (PEB) convened and the PEB found the applicant physically unfit and recommended a combined rating of 40% and his disposition be permanent disability retirement * 27 May 2008 – Orders Number 071-0005 issued by Headquarters, Walter Reed Army Medical Center, retired the applicant by reason of permanent physical disability with a 50% rating * 27 May 2008 – the applicant was honorably retired from active duty by reason of permanent disability * 26 August 2008 – the Veterans Affairs (VA) adjudicated the applicant’s claim and awarded him a 100% disability rating effective 28 May 2008 * 10 March 2010 – the applicant submitted DA Form 2860 (Claim for CRSC) and was approved on 3 May 2010 for 90% combat related disability effective June 2008 * the applicant’s records are void of any SBP elections or withdrawals prior to his disability retirement * Case Management Division inquired with DFAS regarding the applicant’s SBP debt and a DFAS official replied the applicant’s current election is full spouse coverage effective 28 May 2008, current monthly payment was $46.88 and his balance was $6,320.16 4. The applicant provides: * divorce decree showing the applicant and Ms. V – G- were divorced on 4 August 2009, and they did not have any children from the marriage * birth certificate showing the applicant and Ms. S- S- had one child (A- N.- T-) born to them on * marriage certificate showing the applicant and Ms. S- S- were married on 18 August 2018 * CRSC pay statement showing a $46.88 monthly SBP premium 5. DFAS indicates no SBP requests or notifications of a divorce or the birth of his child since the original processing of the applicant’s DD Form 2656 (Data for Payment of Retired Personnel), on 9 May 2008. The applicant submitted this application to the ABCMR to add child SBP coverage within one year of the child’s birth. The one-year timeframe has since elapsed. 6. See applicable SBP laws below. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the requested relief is not warranted. 2. The Board noted that there is no evidence indicating the applicant has requested relief through DFAS, which is the agency primarily responsible for administering the SBP. The Board agreed the evidence indicates DFAS may be able to give him some or all of the relief he seeks, but this Board cannot properly make a recommendation in his case until he has exhausted the administrative remedy available to him via DFAS. 3. If DFAS is unable to provide the relief he seeks, he may submit a new application to this Board with evidence of denial by DFAS. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. ? REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 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. Department of Defense Financial Management Regulation (DOD FMR) 7000.14-R states, members whose record is corrected to a military disability retirement under the physical disability board process, and who were married on the retirement effective date, will receive automatic full spouse coverage under the SBP, unless the member makes an affirmative election on a DD Form 2656. Premiums are suspended for spouse coverage when there is no longer an eligible beneficiary. 4. Title 10, USC, section 1448(a)(5) provides that a person who is not married and has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP. Such an election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date on which that person marries or acquires that dependent child. 5. DFAS website provides the following guidance related to SBP deductions from CRSC. a. The normal method of paying for SBP coverage is by an automatic deduction from your retirement pay. The vast majority of retired members with SBP coverage pay through this means. It is implemented automatically if you elect SBP coverage at the time you retire. b. Beginning with the SBP monthly premiums due in April of 2018, DFAS started deducting SBP recurring monthly premiums from CRSC when retired pay is not sufficient to cover the full amount of the monthly premiums. This new deduction is due to a change in the law which requires DFAS to deduct SBP recurring monthly premiums from CRSC. c. The change in the law only affects SBP recurring monthly premiums, beginning with the monthly premium due in April of 2018. It does not affect past due SBP premium amounts. DFAS is not deducting past due premiums from CRSC pay. Retirees who have past due SBP premiums are still responsible for paying the past due SBP premium amount and any interest accrued through direct remittance. ABCMR Record of Proceedings (cont) AR20180014615 2 1