IN THE CASE OF:	

		BOARD DATE:	4 February 2010  

		DOCKET NUMBER:  AR20090012836 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, reconsideration of the Board's denial of his request to refund Reserve Component Survivor Benefit Plan (RCSBP) premiums for insurable interest coverage for the months of February, March, and April 2008.  In addition, he requests that his military records be corrected to show he elected RCSBP former spouse coverage.  He also requests, “…I am pleading with the Board to grant me full relief of over $2700.00 dollars, that was deducted from my DFAS military account.”

2.  The applicant states, in effect, that when he applied for RCSBP he named his daughter in his retired pay application as the person of insurable interest.  He states he should have elected former spouse coverage to comply with his divorce decree.  In addition, he states that the Board should grant him full relief and refund the $2,700.00 of RCSBP premiums that were deducted from his retirement pay for insurable interest coverage.

3.  The applicant provides a copy of his final divorce decree, dated 7 April 2005, in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080007028 on 12 August 2008.

2.  The applicant now provides his final divorce decree that was filed on 7 April 2005 in the Second Judicial District Court of the County of Bernalillo in the State of New Mexico in support of his previous request which is considered new evidence and requires consideration by the Board. 

3.  In the original decision the ABCMR found that the applicant had cancelled his RCSBP insurable interest coverage.  The applicant was advised that he would not be refunded the premiums that had already been collected.  However, the undated divorce decree obligated him to provide former spouse coverage under the RCSBP for K------n D------o.  It was recommended that he apply to this Board for a correction to show that he made timely election upon his retirement for former spouse coverage under the SBP.  In addition, the applicant was advised to ask for an additional correction to show that he only made a former spouse SBP election, not an election for a person of insurable interest.  If granted by the Board, this request would result in a refund of his SBP premiums offset by former spouse premiums due from the date of his retirement. 

4.  The applicant was born on 25 January 1947.  The applicant enlisted in the Army National Guard (ARNG) on 7 July 1969.  He served continuously in the ARNG unit until his separation on 15 December 1980.  After a break in service, he enlisted in the ARNG on 14 March 1992.  Then on 1 March 1993 he entered active duty in the ARNG under Title 32, U.S. Code, section 112 (State Controlled.)  

5.  On 23 April 2003, the applicant received his notification of eligibility for retired pay at age 60, also known as his 20 Year Letter, from the New Mexico Department of Military Affairs.  

6.  On 25 January 2007, the applicant turned 60 years old. 

7.  The applicant's military records show that he was honorably separated from the New Mexico ARNG on 31 January 2008 and he was transferred to the Retired Reserve.  He held the rank of chief warrant officer (CW)/pay grade W-3.  

8.  Upon transfer to the Retired Reserve, the applicant applied for retired pay.  In conjunction with his retirement application, the applicant completed a DD Form 2656 (Data for Payment of Retired Personnel) on 11 December 2007.  In Section IX (SBP Election), he elected coverage for his daughter B-----y; the person named in Item 28 (Insurable Interest Beneficiary).  In item 27 (Level of Coverage), he elected coverage based on full gross pay.

9.  The applicant's final divorce decree, dated 10 March 2005, shows he was required to pay his former spouse K------n D------o a portion of his military retired pay and obtain former spouse coverage under the SBP.  Records show the former spouse's share of the applicant's retired pay is automatically being deducted by the Defense Finance and Accounting Service (DFAS). 

10.  In the preparation of this case a staff member contacted DFAS and the DFAS representative stated that there was no DD Form 1883 (Survivor Benefit Plan Election Statement) filed in the applicant's pay records.  In the absence of a spouse's concurrence to anything less than full immediate spouse coverage, his RCSBP defaulted to such by operation of the law.  The DFAS staff member also stated that his records show that the applicant's former spouse made a deemed election within 1 year of the divorce.  Further, the applicant's pay records does not show former spouse coverage and his application for a person of insurable interest was cancelled.  On 13 March 2009, DFAS records show the applicant received a refund of the difference between the cost for insurable interest and former spouse coverage.  In addition, the DFAS records show he is paying premiums for RCSBP.  

11.  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 (and participate in SBP), 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.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay (costs for option C being the more expensive).  Once a member elects either Options B or C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP – it automatically rolls into SBP coverage.  If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60.

12.  Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60.  The law is applicable to cases where 20-year letters have been issued after 1 January 2001.  In other words, failure to elect an option now results in the default election of option C.

13.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  

14.  Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members and reservists.  Insurable interest option was authorized for beneficiaries following divorce if previously covered under the “spouse” option.

15.  Public Law 99-145, dated 8 November 1985, permitted retirees to elect SBP coverage for a former spouse under spouse coverage provisions vice insurable interest provisions.

16.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person to elect to provide an annuity to a former spouse.  Any such election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date of the decree of divorce.  The member must disclose whether the election is being made pursuant to the requirements of a court order or pursuant to a written agreement previously entered into voluntarily by the member as part of a proceeding of divorce.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's former spouse has full immediate spouse RCSBP coverage by virtue of the applicant's failure to submit a declination of coverage accompanied by a spousal concurrence upon receipt of his 20 Year Letter and by the fact the former spouse then successfully converted her coverage to former spouse by submitting a timely request for a deemed election.  Upon the applicant's retirement, he was required to elect SBP coverage for his former spouse as directed by a divorce decree dated 7 April 2005.  Though the applicant attempted to establish an insurable interest coverage for an adult daughter, he had no power to do so and the attempt itself was ultimately invalid.

2.  Based on the new evidence submitted by the applicant and obtained from DFAS, the applicant's former spouse made a deemed election upon their divorce.  Therefore, there is no requirement to correct the applicant's records to show he made a timely application for SBP coverage for his former spouse effective the date of his retirement. 

3.  The applicant’s request is not entirely clear.  

4.  If he is requesting only that his RCSBP coverage be changed from insurable interest to former spouse, based on the evidence of record he has already been refunded the difference in premiums between insurable interest coverage and former spouse coverage.  

5.  If he is requesting that he not have to pay RCSBP premiums at all, the RCSBP premium for former spouse coverage is appropriately being deducted and he is not entitled to a refund of the RCSBP premiums that he paid.

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20080007028, dated 12 August 2008.




      _______ _   X_______   ___
               CHAIRPERSON
      
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.

ABCMR Record of Proceedings (cont)                                         AR20090012836



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ABCMR Record of Proceedings (cont)                                         AR20090012836



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