IN THE CASE OF:	  

		BOARD DATE:	  20 February 2014

		DOCKET NUMBER:  AR20130007783 


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, in effect, correction of his records to show he submitted a DD Form 2656-6 (Survivor Benefit Plan (SBP) Election Change Certificate) in a timely manner naming his current spouse "BSF" as his eligible beneficiary.

2.  The applicant states:

* on 20 July 2002, he was not properly briefed on how to complete his DD Form 1883 (SBP Election Certificate)
* he was not married at the time and thought his daughter "PJF" would be his beneficiary
* he would have chosen "child only" and not "insurable interest" had he known
* he now understands "insurable interest" is 40 percent of his base pay
* as an M-Day Soldier (an M-Day status member performs weekend drill), he was not briefed at any point on retirement and his Retirement Services Officer later advised him of the error
* his unit did not inform him that he needed to complete a DD Form 2656-6 (SBP Election Change Certificate) when he turned in his marriage certificate
* as a veteran, he should be given a second chance




3.  The applicant provides:

* Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)
* DD Form 1883, dated 20 July 2002
* DD Form 108 (Application for Retired Pay Benefits), date illegible
* Army National Guard (ARNG) Retirement Points History Statement, dated 23 January 2013
* DD Form 2656 (Data for Payment of Retired Personnel), dated 30 April 2013
* Marriage Certificate to "LJB," dated 31 December 1971
* Divorce Decree from "LJB," dated 28 February 1974
* Marriage Certificate to "BSF," dated 20 April 1974
* Certificate of Divorce or Annulment from "BSF," dated 25 September 1998
* Marriage License to "BSF," dated 15 February 2003

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.  After having prior honorable service in the Regular Army, the applicant enlisted in the ARNG on 17 May 1984.

3.  On 18 June 2002, the applicant was notified of his eligibility for retired pay at age 60.

4.  On 20 July 2002, the applicant completed a DD Form 1883 and elected Option C (immediate coverage).  The form also shows he checked the:

* "No" block indicating he was not married
* "No" block indicating he had no dependent children
* "Yes" block for "natural person with insurable interest (may be elected only if you have no spouse and/or children)

5.  His DD Form 1883, Section IV (Insurable Interest Coverage), shows he listed "PJF" as his daughter.  The form lists PJF's birth date as 25 April 1978.  The reverse side of the DD Form 1883 explains the costs of coverage for each category and explains, “Natural Insurable Interest person.  Cost of coverage is 10 percent of full retired pay, plus an additional 5 percent of full retired pay for each full five years that your age exceeds that of the natural interest person.  The total cost may not exceed 40 percent of retired pay.”

6.  On 15 February 2003, the applicant and "BSF" were married.

7.  On 31 May 2004, the applicant was honorably discharged and transferred to the Retired Reserve.

8.  On 4 January 2013, the applicant submitted a DD Form 2656.  This form shows he listed "BF" [BSF] as his spouse and elected spouse-only SBP coverage based on full gross pay.

9.  The record is void of any evidence and the applicant failed to provide evidence showing he submitted a request to the Defense Finance and Accounting Service (DFAS) to terminate his insurable interest SBP coverage.

10.  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. 

11.  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.

12.  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."

13.  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 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.

14.  Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.  The retiree must have paid monthly premiums starting on the date of enrollment and a buy-in premium covering all the costs that would have been paid for the election if it had been made at the first opportunity to do so.  Extensive publicity was given in Army Echoes, the retiree bulletin provided to retirees and gray-area retirees.

15.  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.

16.  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 person’s 18th birthday, or is the child of a person to whom the Plan applies including an adopted child, a step or foster child or a recognized natural child who lived with that person in a regular parent-child relationship.



DISCUSSION AND CONCLUSIONS:

1.  In connection with receipt of his 20-year letter, the applicant submitted an RCSBP election in July 2002 wherein he elected coverage for an insurable interest beneficiary and named his daughter "PJF" as the beneficiary of his SBP.  This election was correct since "PJF" was 24 years old at the time and no longer considered a dependent.  Even if he did not receive SBP counseling at that time, the reverse side of the DD Form 1883 clearly explained how much insurable interest coverage could cost him.  He married his current spouse "BSF" in February 2003.

2.  The law allows him to terminate his natural person with insurable interest SBP coverage at any time.  However, his record is void and he failed to provide evidence showing he submitted a request to DFAS to terminate his insurable interest SBP coverage.

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 unknown 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)                                         AR20130007783



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ABCMR Record of Proceedings (cont)                                         AR20130007783



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