IN THE CASE OF:	  

		BOARD DATE:  28 February 2012

		DOCKET NUMBER:  AR20110018219 


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 enrollment in the Survivor Benefit Plan (SBP), spouse coverage.

2.  The applicant states:

* He submitted the paperwork to the Defense Finance and Accounting Service (DFAS) 45 days too late
* DFAS advised him that he has to wait until Congress declares an Open Season
* When he retired in April 2009 (actually April 2007), he was single and he did not elect enrollment in the SBP
* When he married in May 2009, he enrolled his spouse in the Defense Enrollment Eligibility Reporting System and he was assured all benefits to his spouse were taken care of
* As a Reserve Soldier, he was not briefed or informed of the one-year limit
* There are many Selected Reserve Soldiers who are not briefed on the SBP
* He did not have the benefit of a personnel branch for assistance

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending on 29 April 2009
* Certificate of marriage
* Letters from DFAS
* DD Form 2656 (Data for Payment of Retired Personnel)

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 15 January 1947.

2.  He was appointed as a Reserve commissioned officer and executed an Oath of Office on 14 January 1980.  He served in a variety of stateside or overseas assignments and he attained the rank of lieutenant colonel (LTC).

3.  On 1 August 2006, he submitted a DD Form 108 (Application for Retired Pay Benefits) at age 60.  He also completed a DD Form 2656 on 29 August 2006 wherein he stated that he was single with no spouse or dependent children.  He elected SBP coverage for his twin brother, as an insurable interest and also as the beneficiary of his arrears pay.

4.  He was placed on the retired list in his retired rank of LTC on 15 January 2007, the date he turned 60.  

5.  He entered active duty under the Retiree Recall Program on 2 November 2008 and subsequently served in support of Operation Enduring Freedom.  He was honorably released from active duty on 29 April 2009.

6.  On 9 May 2009, he married his spouse, Caxxx.

7.  It is unclear if and when he notified DFAS of his marriage.  However, on 3 August 2010, a DFAS official notified him that he only had a one-year window to add his spouse to his SBP.  The official further advised him that there is a possibility of an Open Season and that such action is designated by Congress and has its own rules and regulations. 

8.  On 18 October 2010, a DFAS official advised him that he had made an election at retirement and his election was made to a Natural Interest Person.  Spouse SBP is considered a different election in which he had one year to notify DFAS of his newly acquired spouse if he had never had a spouse before.

9.  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.
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., 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."

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 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.

13.  Title 10, U. S. Code, section 1448(a)(5) provides that a person who is not married and has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP.  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child.  

14.  The Defense Finance and Accounting Service interprets the first part of Title 10, U. S. Code, section 1448(a)(5) to mean, “…who is not married OR has no dependent child….”

DISCUSSION AND CONCLUSIONS:

1.  In connection with his application for retired pay at age 60, the applicant submitted an SBP election in August 2006 wherein he elected coverage for an insurable interest beneficiary and named his brother as the beneficiary of his SBP.  He retired on 15 January 2007, at age 60.  He married his current spouse, Caxxx, in May 2009.  Although he enrolled her in DEERS, it appears he failed to make reasonable specific inquiry regarding SBP:

2.  He clearly knew of the program, having previously made a by name designation of his brother; yet, he then inexplicably did nothing in contemplation of his changed marital status.  His argument that personnel who added his new spouse to DEERS, which typically involves TRICARE, ID Card, Post Exchange, commissary, and access to other on-post facilities, should have anticipated his interest in the SBP and that "all" means every conceivable potential benefit and thus, somehow, he shifts the responsibility for his failure to the Government, falls flat. 

3.  The applicant could have made a written request to terminate his natural person with insurable interest SBP coverage at any time.  There is no specific form to be used when requesting termination of SBP for a natural person with insurable interest coverage.  He did not do so.

4.  The law allowed him to add his spouse as an SBP beneficiary provided he submitted a spouse SBP election within one year of marriage to his current spouse.  He did not do so.  Although the option to terminate his natural person with insurable interest SBP coverage exists at any time, the option to add his current spouse as an SBP beneficiary can now only be accomplished during an Open Season.  

5.  The decision to enroll in or to disenroll from the SBP and the amount of coverage is a personal decision made by the member and/or his/her family, if applicable.  At the time of his retirement, the applicant made a decision to provide an annuity to his insurable interest.  At the time of his marriage, he did not change his election to spouse coverage within one year as required by law.

6.  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 one-year open enrollment period (October 2005 to September 30, 2006).  It is unclear when the next Open Season will be.

7.  In view of the foregoing evidence, the applicant 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)                                         AR20110018219



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ABCMR Record of Proceedings (cont)                                         AR20110018219



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