RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 May 2008
	DOCKET NUMBER:  AR20070018491 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Ms. Catherine C. Mitrano

Director

Mrs. Nancy L. Amos

Analyst
      The following members, a quorum, were present:


Mr. Curtis L. Greenway

Chairperson

Mr. Larry W. Racster

Member

Mr. Roland s. Venable

Member
	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).



THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his premium deductions for insurable interest coverage under the Survivor Benefit Plan (SBP) be stopped.

2.  The applicant states that he incorrectly signed for the SBP indicating he had dependent children.  He did not understand the situation.  

3.  The applicant provides the front page of a DD Form 1883 (Survivor Benefit Plan Election Certificate); a DA Form 4651-R (Request for Reserve Component Assignment or Attachment); and a letter, dated 8 November 2007.

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 applicant was born on 26 October 1943.  After having had prior service, he enlisted in the U. S. Army Reserve on 13 March 1987.  He was promoted to Sergeant First Class, E-7 on 19 March 1991 in military occupational specialty 46Q (Public Affairs Specialist).

3.  On 20 September 1996, the applicant completed a DA Form 4651-R and requested assignment to the Retired Reserve effective 30 September 1996.

4.  The applicant’s notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 24 September 1996.  The notification informed him that he had
90 days from the date he received his 20-year letter to make a Reserve Component SBP (RCSBP) election.  It also informed him that more detailed information concerning participation in the RCSBP was enclosed.

5.  On 28 January 1997, the applicant completed a DD Form 1883.  In section II, he noted that he was not married and had no dependent children but elected to participate in the RCSBP for natural person with insurable interest (an adult daughter), option C, full base amount.  Section IV then instructed him to complete this section if he was unmarried and had no dependent children and he wanted a person with an insurable interest to receive an annuity.  He completed this section with the required information on his daughter.

6.  The DD Form 1883 warned the applicant, “IMPORTANT:  The decision you make with respect to participation in this Survivor Benefit Plan is a permanent irrevocable decision.  Please consider your decision and its effect very carefully.” 

7.  The applicant also completed an ARPC Form 3854 (Reserve Component Supplemental Survivor Benefit Plan Election Certificate (RC-SSBP)) on              28 January 1997, electing to participate in the RC-SSBP for his spouse/former spouse at the 20 percent level.

8.  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.  A person who is not married and does not have a dependent child upon becoming eligible to participate in the SBP may elect to provide an annuity to a natural person with an insurable interest in the member.  Premiums for insurable interest coverage are generally higher than for any other category of coverage.

9.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A)  elect to decline enrollment and choose at age 60 whether to start SBP participation; (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; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  

10.  Public Law 103-337, enacted 5 October 1994, allowed SBP insurable interest participants whose beneficiary is not their former spouse to voluntarily terminate their participation in the SBP.  Any such termination shall be made by a participant by the submission to the Secretary concerned of a written request to discontinue participation in the SBP.  Such participation shall be discontinued effective on the first day of the first month following the month in which the 
request is received.  Once participation is discontinued, benefits may not be paid in conjunction with the earlier participation in the SBP and premiums paid may not be refunded.

11.  Title 10, U. S. Code, section 1452c(1) states the retired pay of a person who has elected to provide an annuity to a person under section 1450(a)(4) (i.e., insurable interest coverage) shall be reduced as follows:  

	Subsection 1452c(1)(B):  in the case of a person providing a reserve component annuity, the reduction shall be by an amount prescribed under regulations of the Secretary of Defense.

12.  Office of the Assistant Secretary of Defense (Force Management Policy) memorandum, subject:  Sections 637 and 638 of the National Defense Authorization Act for Fiscal Year 1995, Public Law 103-337, October 5, 1994, Changed Provisions of the Uniformed Services Survivor Benefit Plan (SBP), dated 17 March 1995, provided that SBP premiums will no longer apply as of the effective date of termination of insurable interest coverage except if the participant terminating insurable interest coverage is a participant of a Reserve Component annuity.  In such case, the Reserve Component premium add-on will apply for life.

13.  On an unknown date, the applicant apparently notified the Defense Finance and Accounting Service (DFAS) that he wished to terminate his insurable interest SBP coverage.  On 8 March 2008, DFAS informed the Board analyst that the applicant is paying only the Reserve Component cost for his insurable interest coverage.

DISCUSSION AND CONCLUSIONS:

1.  The applicant elected to participate in the RCSBP in January 1997 for insurable interest coverage for his adult daughter.  The DD Form 1883 warned him to consider his decision and its effect very carefully.  His 20-year letter had also informed him that more detailed information concerning participation in the RCSBP was enclosed with the letter.

2.  The applicant was a senior noncommissioned officer who had left his unit only a few months prior to completing the DD Form 1883.  He could have contacted someone at his old unit for guidance, he could have contacted someone at the  U. S. Army Reserve Personnel Command for guidance, or he could have contacted a Retirement Services Officer at the nearest military installation for guidance.  

3.  The applicant did not sign the DD From 1883 indicating he had dependent children.  He noted on the form that he had no dependent children, and then he checked that he desired natural person with insurable interest coverage.  He then completed the section pertaining to insurable interest coverage; he did not complete the section pertaining to dependent children.  

4.  It is noted that the applicant completed the ARPC Form 3854 with instructions contrary to those on the DD Form 1883 (and it appears that DFAS never considered this document); however, that is insufficient evidence to show he did not realize what he was signing up for, or should have realized, when he completed the DD Form 1883.

5.  It appears that the applicant has since notified DFAS to terminate his insurable interest SBP coverage; however, DFAS is properly deducting the Reserve Component premium add-on from his retired pay.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



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                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20070018491


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508