IN THE CASE OF:	  

		BOARD DATE:	  20 June 2013

		DOCKET NUMBER:  AR20120021982 


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) for spouse only coverage.

2.  The applicant states:

* in August 1995, he provided his unit with a copy of his marriage certificate and he was advised that becoming married would automatically change his SBP election from his sister to his spouse
* in April 2004, he was advised to fill out a DD Form 2656-6 (SBP Election Change Certificate) which he did; however, no one advised him that it was overdue
* on 27 October 2012 at a pre-retirement seminar, his records were reviewed and found to be in error

3.  The applicant provides:

* 1995 marriage certificate
* 1990 DD Form 1883 (SBP Election Certificate)
* 2004 DD Form 2656-6
* Notification of Eligibility for Retired Pay at Age 60
* Army Reserve Personnel Command Form 249-E (Chronological Statement of Retirement Points)


CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 26 August 1951.

2.  Having prior enlisted service, he was appointed as a Reserve warrant officer and executed an oath of office on 24 January 1972.  He served in a variety of assignments in the U.S. Army Reserve as well as the Army National Guard and he attained the rank of chief warrant officer five (CW5).

3.  On 12 January 1990, the U.S. Army Reserve Personnel Center, St. Louis, MO, issued him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

4.  On 6 March 1990, he completed a DD Form 1883.  He indicated he was neither married nor had dependent children.  He elected "Natural person with insurable interest" SBP coverage under option C (immediate coverage) based on the full amount.  He then listed the name of Janis H. A____, sister, as the person he wanted to receive the SBP annuity who had an insurable interest in him.

5.  On 29 July 1995, he and Jeanne M. A____ were married.

6.  On 1 April 2004, he executed a DD Form 2656-6 indicating he wanted to change his SBP coverage from "insurable interest" to "spouse only" coverage based on his marriage to Jeanne.

7.  The applicant turned 60 years of age on 26 August 2011.  His records show he applied for retired pay in April 2013.

8.  Public Law 92-425, 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.

9.  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.

10.  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."

11.  Office of the Assistant Secretary of Defense (Force Management Policy) memorandum, dated 17 March 1995, subject:  Sections 637 and 638 of the National Defense Authorization Act for Fiscal Year 1995, Public Law 103-337, dated 5 October 1994, Changed Provisions of the Uniformed Services Survivor Benefit Plan (SBP), 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.

12.  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 1 year after the date on which that person marries or acquires that dependent child.

13.  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.  Within 90 days of receiving his 20-year letter, the applicant made an SBP election wherein he elected coverage for an insurable interest beneficiary and named his sister as the beneficiary of his SBP under option C based on the full amount.  He was neither married nor had children at the time.

2.  He married his spouse Jeanne in July 1995, but he did not request a change in his SBP election from "natural insurable interest" to "spouse" coverage within the statutory time frame.  

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.

4.  The law 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 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 enrollment 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 he received his 20-year letter, 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 1 year as required by law.

6.  An open enrollment season is a time frame established 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 enrollment season was a 1-year period from 1 October 2005 to 30 September 2006.  It is unknown if or when the next open enrollment 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 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)                                         AR20120021982



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ABCMR Record of Proceedings (cont)                                         AR20120021982



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