IN THE CASE OF:	  

		BOARD DATE:	  6 June 2013

		DOCKET NUMBER:  AR20120017911 


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 military records to show he elected to decline participation in the Reserve Component Survivor Benefit Plan (RCSBP).

2.  The applicant states that when he was notified in February 1992 that he was eligible for retired pay at age 60, he submitted his SBP election of an insurable-interest person who was his adult daughter.  In 2002, he requested information pertaining to application for retired pay.  At that time he spoke with a representative from the U.S. Army Reserve Personnel Center (ARPERCEN).  He was informed that the forms would be sent to him for completion and return to ARPERCEN.  He was also told that his daughter was not an eligible SBP beneficiary and that he should decline SBP.  In October 2002, he returned his application for retired pay and declined SBP because he was single and had no eligible dependents.

3.  The applicant further states that in November 2002, the Defense Finance and Accounting Service (DFAS) sent him a letter stating it did not receive either of his earlier SBP election forms.  He was sent enclosures for changing his address, designating a beneficiary for unpaid pay, and an SBP fact sheet.  He returned these forms.  However, his Retiree Account Statement, effective 23 December 2002, indicates DFAS ignored his SBP information.  When he received his next Retiree Account Statement, effective 2 December 2003, DFAS was still deducting SBP for a spouse he did not have.

4.  The applicant states he talked many times through the years to representatives at DFAS who kept verifying that he could not have his daughter as an SBP beneficiary.  The applicant kept saying that he had declined SBP and did not have a spouse.  DFAS always said they would look into the matter; however, the spouse deductions did not go away.  He kept calling.  Many times he could not reach anyone.  He wrote notes.  DFAS recognized the communication problem he had.

5.  The applicant states he had moved seven times, had coronary by-pass surgery, and had a pacemaker installed.  During this past year, he moved to Florida.  Finally, he was told to write to the commander of DFAS and request immediate action to correct his retired pay.  He did so on 5 July 2011.  He did not receive a reply.

6.  The applicant states he wrote his U.S. Congressman on 6 October 2011 and explained that DFAS would not address his problem.

7.  The applicant states he received a letter from DFAS on 13 October 2011 and his situation became worse.  DFAS had previously ignored his original SBP election but after requesting Congressional assistance, DFAS implemented the original election which resulted in him owing more than $47,000.00 which he must pay with interest.  DFAS had ignored his SBP requests for 9 years and now DFAS was implementing the initial election retroactively.

8.  The applicant states DFAS informed him in November 2011 that DFAS had not received his initial SBP election dated in 1992 until June 2011.  DFAS stated the election of his daughter as an insurable-interest person provided for immediate coverage.  The applicant argues that because his initial SBP election was ignored, his daughter was never covered as an insurable-interest person.

9.  The applicant contends that his daughter would not have known she could appeal the DFAS action of not covering her as a beneficiary, but now DFAS says she is covered and he owes over $40,000.00.

10.  The applicant provides copies of:

* Notification of Eligibility for Retired Pay at Age 60, dated 21 February 1992
* DD Form 1883 (Survivor Benefit Plan Election Certificate) dated 6 April 1992
* Department of the Army Reserve Personnel (DARP) Form 289, dated 21 April 1992, receipt for DD Form 1883 from ARPERCEN
* letter to the Commander, U.S. Army Reserve Personnel Command     (AR-PERSCOM) (formerly ARPERCEN), dated 3 September 2002
* DD Form 2656 (Data for Payment of Retired Personnel), dated 3 October 2002
* letter from AR-PERSCOM, dated 6 November 2002
* letter from DFAS, dated 14 November 2002
* Retiree Account Statement, effective 23 December 2002
* Retiree Account Statement, effective 2 December 2003
* handwritten plea for help, undated
* letter from DFAS, dated 1 August 2005
* letter to DFAS, dated 5 July 2011
* letter to his U.S. Congressman, dated 6 October 2011
* letter from DFAS, dated 13 October 2011, with policies and procedures sheet explaining insurable-interest beneficiary
* letter to DFAS, dated 21 October 2011
* letter to his U.S. Congressman, dated 21 October 2011
* letter from his U.S. Congressman, dated 10 November 2011, with enclosure from DFAS

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 was born on 21 October 1942.  On 21 February 1992, the Chief, Retired Activities, ARPERCEN, wrote a memorandum to the applicant informing him that he was eligible for retired pay at age 60 (20-year letter).  This memorandum informed the applicant that he had 90 days from the date of the memorandum to submit his DD Form 1883.  If he did not submit his election within the 90-day period, he would not be allowed to obtain SBP coverage until he applied for retired pay at age 60.

3.  The applicant's DD Form 1883, dated 6 April 1992, shows he was not married and had no dependent children.  He elected coverage for a natural person with insurable interest who was his adult daughter.  He indicated option "C" for immediate coverage.

4.  On 21 April 1992, ARPERCEN sent the applicant a DARP Form 289 indicating that his DD Form 1883 was received.

5.  On 3 September 2002, the applicant sent a letter to the Commander,         AR-PERSCOM, requesting information pertaining to retired pay.  

6.  On 3 October 2002 approximately 2 1/2 weeks prior to his 60th birthday, the applicant submitted a DD Form 2656.  He elected not to participate in the SBP and indicated he did not have eligible dependents.  He indicated that he was single in section VI of the form.  Section 28 (Insurable Interest Beneficiary) was left blank.  The form was signed by the applicant and witnessed.

7.  On 6 November 2002, the Chief, Transition and Separations Branch,          AR-PERSCOM, notified the applicant that his application for retired pay had been approved.  He was further informed that DFAS would notify him when his account had been established.

8.  On 14 November 2002, DFAS sent the applicant a welcome letter.  This letter told him that his retired pay account had been initiated, but all documents necessary to ensure accurate establishment of the account had not been received.  The letter did not specify which documents were missing.  His account would be systematically reviewed and adjusted when those missing documents were received.  Attached to this letter was a summary of his account.  It showed him as being single.  It also stated that his SBP election form had not been received so he was provided automatic coverage for spouse only.  His SBP deduction was $79.76.

9.  The applicant's Retiree Account Statement, effective 23 December 2002, shows SBP coverage for spouse only at a cost of $80.87.

10.  The applicant's Retiree Account Statement, effective 2 December 2003, shows SBP coverage for spouse only at a cost of $82.57.

11.  On 5 July 2011, the applicant wrote a letter to DFAS wherein he requested immediate action.  He explained that he had become eligible for retired pay in October 2002, that he had submitted a DD Form 1883 in April 1992, and had received a DARP Form 289 acknowledging receipt of the DD Form 1883 in April 1992.  He enclosed copies of his Retiree Account Statement, DD Form 1883, and DARP Form 289.

12.  On 13 October 2011, DFAS wrote a letter to the applicant informing him that his SBP coverage was changed from spouse only to an insurable-interest person based on his DD Form 1883.  This change was made retroactive to 1 November 2002 resulting in a debt of $47,787.85.  DFAS requested full payment of the debt within 30 days.

13.  On 7 November 2011, DFAS replied to the applicant's U.S. Congressman concerning his SBP situation.  DFAS informed the Congressman that they had not received any correspondence from the applicant until June 2011 when he provided a copy of a valid RCSBP election made on 6 April 1992 wherein he had elected an insurable-interest person.  DFAS accepted the form and adjusted his SBP.  DFAS further stated the applicant could terminate his insurable-interest person election at any time by submitting a written request to terminate the coverage.

14.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP 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.

15.  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, or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  

16.  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.

17.  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, 5 October 1994, Changed Provisions of the Uniformed Services 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.  The applicant contends that his military records should be corrected to show he elected to decline participation in the RCSBP.

2.  The evidence clearly shows the applicant initially attempted to elect an insurable-interest person in 1992.  At that time he did not have any eligible dependents.  However, it appears this election, though received by Reserve Component authorities, was lost or never processed.  In 2002 when he applied for retired pay, he changed his election to non-participation because he had no eligible dependents.

3.  In 2002, DFAS inexplicably enrolled the applicant in the SBP for spouse only coverage because DFAS did not have either of the applicant's election forms.  From 2002 to 2011, the applicant had corresponded with DFAS to correct his records to show he did not want to participate.  In 2011, the applicant sent a personal copy of his DD Form 1883 as part of his argument.  Based on receipt this form, DFAS retroactively adjusted his SBP account.  DFAS argued that his insurable-interest person was retroactively covered from 2002 even though no such election had been received until 2011.

4.  There has been a clear injustice.  DFAS never received or processed the DD Form 1883 until after automatically enrolling him in spouse-only coverage for a spouse he did not have.  

5.  Accordingly, it would be appropriate to correct the applicant's records by voiding his DD Form 1883 and showing his initial SBP election was made in conjunction with his 2002 request for retired pay wherein he indicated he did not have eligible dependents and did not want to participate.

BOARD VOTE:

____x___  ___x____  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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:

	a.  voiding and removing the April 1992 DD Form 1883 from his records,

	b.  showing he elected not to participate in the SBP in conjunction with his request for retired pay and that this election was accepted by DFAS and processed accordingly,

	c.  terminating any and all collection action(s) pertaining to SBP premiums,

	d.  refunding to him any and all monies collected for SBP coverage, and

	e.  providing him with a Retiree Account Statement showing the results of these corrections.



      ____________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)                                         AR20120017911



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ABCMR Record of Proceedings (cont)                                         AR20120017911



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