IN THE CASE OF:	  

		BOARD DATE:  1 March 2012

		DOCKET NUMBER:  AR20110017610 


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 correction of his records to change his Reserve Component Survivor Benefit Plan (RCSBP) election from "natural person with insurable interest" to "spouse only."

2.  The applicant states at the time of retirement he elected RCSBP coverage for an insurable interest beneficiary.  He married in 2004, but failed to update his election prior to submitting his application for retirement.  He would like his election updated to reflect full coverage for "spouse only."

3.  The applicant provides:

* A marriage certificate
* DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate) 
* A divorce decree

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's records show he was born on 1 May 1951.

3.  He enlisted in the U.S. Army Reserve (USAR) on 11 August 1970.  He served through multiple extensions or reenlistments and attained the rank of staff sergeant (SSG).

4.  On 25 June 1997, by memorandum, the USAR issued him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This memorandum notified the applicant that he had completed the required years of service and would be eligible for retired pay upon application at age 60.  

5.  Enclosed with this letter was a DD Form 1883 which notified him that he was entitled to participate in the RCSBP and that "by law" he had only 90 calendar days from the date he received this letter to submit his SBP Election Certificate.

6.  On 30 June 1997, he completed DD Form 1883, wherein he indicated he was single and had no dependents.  This form also shows he elected "natural person with insurable interest" full coverage under option C (immediate coverage).  He named his fiancé Bxxxxxx as the beneficiary of his SBP.

7.  Orders Number C-09-321461, dated 3 September 2003, issued by USAR Personnel Command-St. Louis, released him from the USAR Control Group (Reinforcement) and assigned him to the Retired Reserve effective 22 July 1997.

8.  On 13 May 2005, he married his current spouse, Fxxxxxx. 

9.  Orders Number P03-942304, dated 11 March 2011, issued by U.S. Army Human Resources Command placed him on the Retired List in the rank of SSG effective 1 May 2011.

10.  In the processing of this case, a Defense Finance and Accounting Service (DFAS) official verified by email, dated 5 August 2011, that the applicant requested to remove Bxxxxxx as his SBP beneficiary as he had remarried.  The request was received at DFAS on 23 April 2011.  The applicant is currently being charged $11.31 each month for the Reserve Component premium add-on.

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 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.  At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applied for retired pay and elected to participate in the standard SBP and reaches 60 years of age. 

12.  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.

13.  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., natural person with 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."

14.  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 natural person with insurable interest coverage except if the participant terminating natural person with insurable interest coverage is a participant of a Reserve Component annuity.  In such case, the Reserve Component premium add-on will apply for life.

DISCUSSION AND CONCLUSIONS:

1.  In connection with his receipt of his 20-year letter, the applicant submitted an SBP election in June 1997 wherein he elected coverage for an insurable interest beneficiary and named his fiancé Bxxxxxx as the beneficiary of his SBP.  He married his current spouse, Fxxxxxx, in May 2005.  

2.  In April 2011, he terminated his natural person with insurable interest SBP coverage for Bxxxxxx.  The law allowed him to terminate his natural person with insurable interest SBP coverage at any time. 

3.  The law also allowed him to add his spouse as an SBP beneficiary provided he submitted a spouse SBP election within 1 year of marriage to his current spouse.  He failed to do so.  The option to add his current spouse as an SBP beneficiary can now only be accomplished during an Open Season.  

4.  An Open Season is a time frame, set by Congress, to allow retirees to enroll in the SBP or increase their participation.  Generally, a member can elect to enroll in any category (spouse, former spouse, spouse and child, former spouse and child, child only, or natural person with insurable interest) for the first time.  The last Open Season was a 1-year open enrollment period (October 2005 to September 2006).  It is unclear when the next Open Season will be.

5.  In view of the foregoing, he is not entitled to the requested relief.

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 for correction of the records of the individual concerned.



      ___________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)                                         AR2002076477



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110017610



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1