IN THE CASE OF:
BOARD DATE: 3 January 2013
DOCKET NUMBER: AR20120011207
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 adjustment of the Survivor Benefit Plan (SBP) premium payment to coincide with his election of "Children Only" coverage.
2. The applicant states he is being charged an SBP premium for "Spouse" coverage when in fact he elected "Children Only" coverage. He believes this was the result of a clerical error made by out-processing personnel at Fort Bragg, North Carolina.
3. The applicant provides a DD Form 2656 (Data for Payment of Retired Personnel) in support of his request.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 31 January 2006, the applicant was retired in the grade of master sergeant (MSG)/E-8. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed a total of 20 years and 24 days of active military service.
3. The record contains a DD Form 2656 completed by the applicant and his spouse on 5 April 2006. This document shows the applicant elected SBP coverage for "Children Only" based on full gross pay without supplemental SBP. The applicant listed his daughter in the insurable interest portion of the document. The applicant's spouse signed this document, which was witnessed by a third party, concurring with the applicant's election on 5 April 2006.
4. A review of the Defense Finance and Accounting Service (DFAS) record shows the applicant's SBP premium is based on automatic spouse coverage based on the applicant electing both "Children Only" and an insurable interest coverage on the DD Form 2656, and the absence of a DD Form 1883
(SBP Election Form).
5. 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. The term dependent child means a person who is unmarried; is under 18 years of age or at least 18 but under 22 years of age and pursuing a full-time course of study in a high school, college, or comparable recognized educational institution; is incapable of self support because of a mental or physical incapacity existing before the persons 18th birthday, or is the child of a person to whom the Plan applies including an adopting child, a step or foster child or a recognized natural child who lived with that person in a regular parent-child relationship. Premiums for insurable interest coverage are generally higher than for any other category of coverage.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request to adjust his premium based on his "Children Only" SBP election has been carefully considered and found to have merit.
2. The DD Form 2656 on file clearly shows the applicant elected "Children Only" coverage based on full gross pay in the election portion of the form. It further shows his daughter's name was entered in the insurable interest portion of the form. However, given the applicant had an eligible spouse and children, he would not have been eligible to elect an insurable interest beneficiary. Therefore, it appears clear his daughter's name was entered as an insurable interest beneficiary in error.
3. Since the DD Form 2656 shows the applicant's spouse concurred with his election, it would be appropriate to correct the record to show the applicant elected "Children Only" coverage based on full gross pay without supplemental SBP and to adjust his SBP premium accordingly. In addition, the applicant should be provided the difference in premiums collected above that required for "Children Only" coverage since the date of his retirement.
BOARD VOTE:
____x___ ___x____ ____x___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he elected "Children Only" coverage based on full gross pay without supplemental SBP with his spouses proper concurrence, adjusting his SBP premium accordingly, and by providing him any premium overpayments resulting from payments above those required for "Children Only" coverage since the date of his retirement.
_______ _ _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) AR20120011207
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ABCMR Record of Proceedings (cont) AR20120011207
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