2. The applicant requests correction of his military records by canceling his RCSBP (Reserve Component Survivor Benefit Plan) participation for person with insurable interest-daughter. He states in effect, that at the time of his retirement, he was sent four or five forms to fill out and return; that he filled out the forms for RCSBP; that there were no instructions included in his packet; that after his spouse had died in August 1981, he selected his daughter as beneficiary; that he did not know that a child was no longer eligible for annuity after the age of 22; that he assumed that since his wife had died some years earlier that he could choose his daughter as beneficiary and that when he made the selection he had no intention of selecting his daughter as an insured interest person.
3. The applicants military records show that he was born on 1 January 1934. He was a member of the Minnesota Army National Guard. He was married with children. On
9 September 1979, the U.S. Army Reserve Personnel Center (ARPERCEN) sent a packet of notification of eligibility for retired pay at age 60 and the RC-SBP. The applicant elected RC-SBP for spouse with surviving children, full retired pay, option C. On 15 August 1981, the applicants spouse died, suspending the spouse portion of his election but leaving children only participation. On 23 September 1993, the applicant received a packet from ARPERCEN for application for retired pay at age 60, no instructions were included in the packet, so unknowingly he elected another SBP option person with unsurable interest-daughter. This option was erroneously processed and SBP premiums in excess of $200 per month has been deducted from his retired pay since 1994. On 23 January 1994, the applicant was placed on the retired list.
4. On 1 March 1995, the applicant discovered that the premiums deducted from his retired pay was for person with insurable interest-daughter. He submitted an appeal to ARPERCEN requesting cancellation and reimbursement of the SBP premiums. This was denied, but he was advised to apply to this Board.
5. 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. However, surviving children are only entitled to SBP payments until reaching age 22 in certain cases. Changes in SBP options are not authorized except in specific instances, or authorized by law.
6. Public Law 95-397, effective 1 October 1978, extended eligibility for coverage under the SBP to members and former members of the Reserve Components (RC) who had 20 or more years of qualifying service, but had not reached age 60, the age at which they would be eligible for retired pay.
7. In the processing of this case, a staff advisory opinion was obtained from the Headquarters Army Retirement Services, in ODCSPER, which recommended approval of the applicants request for cancellation of his RC-SBP participation for person with insurable interest-daughter, retroactive to date of retirement and his election for spouse and children, full retired pay both suspended. The SBP Board further recommended that a complete audit of the applicants account and an immediate cost refund of overpayments.
CONCLUSIONS:
1. The evidence of record shows that in 1979, the applicant elected RC-SBP participation for his spouse with children. The applicants spouse died in August 1981. The applicants record also shows that on 23 September 1993, the applicant received a packet from ARPERCEN for retired pay and for SBP. The applicant was not provided clear guidance or adequate information upon which to complete his application for retired pay at age 60 and SBP options. The applicant unknowingly submitted a change in his SBP options and selected an invalid election.
2. The technician who processed the applicants election forms in 1993, neither questioned the applicants marital status, nor advised him that he was now ineligible to elect the SBP. Instead, the technician processed the invalid election, which resulted in a forfeiture of 40 percent of the applicants retired pay since January 1994.
3. There appears to be no evidence of negligence on the part of the applicant. Therefore, in view of the foregoing, findings, conclusions and the advisory opinion, it would be appropriate to correct the records as recommended below.
RECOMMENDATION:
That all of the Department of the Army records related to this case be corrected by canceling the applicants participation in the RC-SBP and by conducting a complete audit of the applicants account with an immediate cost refund of any RC-SBP overpayment.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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