IN THE CASE OF:
BOARD DATE: 22 July 2010
DOCKET NUMBER: AR20090020277
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, his military records be corrected by canceling his Reserve Component Survivor Benefit Plan (RCSBP) participation for "natural person with an insurable interest." He also requests to be refunded all premiums paid.
2. The applicant states:
* He wants all SBP and person of interest requests to be halted immediately
* In 2006 the administrative officer filled out the forms wrong because she was new in the position
* The administrative officer had his sister listed as a person of interest when his sister was only supposed to be the person to receive his last check in the event of his death
* When the administrative officer realized she made a mistake she resubmitted paperwork to correct the error in 2006
* All this time up until he received his first retirement check in February 2009 neither the administrative officer nor he knew the error was not corrected in 2006
* This was an administrative error and he should not have money taken from his small retirement because of someone else's mistakes
* He has provided pre-retirement packets electing not to participate in the SBP
* He wants the 2006 records of mistake expunged from his files
3. The applicant provides a DD Form 2656 (Data for Payment of Retired Personnel), dated 17 October 2008, in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 1 January 1949. Having prior active service in the Regular Army and inactive service in the U.S. Army Reserve, the applicant enlisted in the Army National Guard on 15 October 1993.
2. The applicant's notification of eligibility for retired pay at age 60 (his 20-year letter) was prepared on 8 April 2006. On 15 June 2006, he completed a DD Form 2656-5 (RCSBP Election Certificate) electing to participate in the RCSBP with coverage for his sister as a person with insurable interest, option C, full retired pay. This form shows he was not married and he did not have any dependent children. This form also contains no entry where a beneficiary for unpaid retired pay can be designated.
3. On 1 January 2009, the applicant turned age 60 and he was placed on the retired list.
4. In support of his claim, the applicant provided a DD Form 2656, dated
17 October 2008, electing not to participate in SBP. This form shows he was not married and did not have any dependent children. On this form he listed his sister as the beneficiary for his unpaid retired pay.
5. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members 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.
6. Title 10, U. S. Code, section 1448(b)(1)(B) provides that an SBP election of insurable interest may be terminated. Participation in the SBP shall be discontinued effective on the first day of the first month following the month in which the request for termination is received by the Secretary concerned. Section 1448(b)(1)(E) provides that premiums may not be refunded.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows in June 2006, the applicant elected RCSBP coverage for his sister, a person with insurable interest.
2. The law provides an SBP election for an insurable interest beneficiary may be terminated at any time without the concurrence of the beneficiary.
3. The applicant submitted a DD Form 2656, dated 17 October 2008, electing not to participate in the SBP. It was not until he completed this form that he designated his sister as the beneficiary for his unpaid retired pay. As a result, it would be equitable to correct his records to show he cancelled RCSBP for a person with insurable interest on that date. At the time he reached age 60, he had no eligible beneficiaries. Therefore, the Defense Finance and Accounting Service (DFAS) should audit and recalculate his premiums accordingly.
4. It would not be equitable to correct the applicant's records to show he never enrolled in the RCSBP. Had he died prior to making this request, his beneficiary could have used the DD Form 2656-5 to lay claim to the RCSBP annuity.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
___X___ ___X____ ___X____ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
a. showing he requested termination of his RCSBP coverage on 17 October 2008 and such termination became effective on 1 November 2008; and
b. having DFAS audit his account and make appropriate adjustments.
2. The Board further determined that 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 correcting his records to show he declined to participate in the RCSBP.
_______ _ 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.
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