IN THE CASE OF

		BOARD DATE:	  2 September 2014

		DOCKET NUMBER:  AR20130022336 


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 reconsideration of his previous request for a change of his Reserve Component Survivor Benefit Plan (RCSBP) election from "natural person with insurable interest" to "spouse only" coverage.

2.  The applicant states he read the decision of the Board and he agrees with its decision in regard to the fact that he will be held responsible for the accrual of any insurable interest cost.  The ultimate outcome he is trying to achieve is having his spouse covered and he is not seeking to change any costs he has incurred in any way.  He realizes there are systems in place for changes in status and that there are options provided to Soldiers to make those changes; however, Soldiers need to be aware of those options.  At the time of his marriage, he updated all systems that were known to him.  He is fully aware that he has incurred insurable interest costs and that he will incur an annuity cost based on the proposed change in status.  

3.  The applicant provides a DA Form 2823 (Sworn Statement), two DD Forms 1172 (Application for Uniformed Service Identification Card/DEERS (Defense Enrollment Eligibility Reporting System) Enrollment), his spouse's birth certificate and social security card, and a two-page printout of his record in the Interactive Personnel Electronic Records Management System (iPERMS).  

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120007344, on 11 December 2012.

2.  The applicant provides a DA Form 2823, DD Forms 1172, his spouse's birth certificate and social security card, and portions of his iPERMS records which were not previously considered by the Board.  Therefore, these documents are considered new evidence which warrant consideration by the Board.  

3.  In the previous Record of Proceedings it was noted that:

	a.  The applicant was serving as a first sergeant in the Iowa Army National Guard (IAARNG) when he was issued his Notification of Eligibility for Retired Pay at Age 60 (20-year letter) on 16 December 2005.

	b.  On 11 February 2006, he made an RCSBP election of option C (immediate annuity) under "natural person with an insurable interest" for full retired pay and indicated that the person named was his mother.  He also indicated that he was not married.

	c.  On 19 January 2008, he married his current spouse.

	d.  On 27 March 2012, he submitted a change in his RCSBP election in which he attempted to change his election from insurable interest to spouse only coverage.

	e.  On 28 March 2012, officials at the IAARNG returned his request for a change in his RCSBP election without action and advised him that his legal window to change his RCSBP election was 19 January 2008 to 18 January 2009 and that the State of Iowa did not have the authority to change his election.  He was also advised that he could apply to this Board.

	f.  There is no evidence in his military records showing he notified the Defense Finance and Accounting Service of his marriage within the 1-year statutory period. 

4.  The Board concluded there was no evidence indicating he notified proper officials of his desire to change his SBP election from insurable interest to spouse only within 1 year of his marriage.  Accordingly, the Board unanimously voted to deny the requested relief. 

5.  He provides a DA Form 2823, dated 5 May 2013, in which the submitter indicates she was the Readiness Noncommissioned Officer at the time the applicant filled out the DD Form 2656-5.  She also states that she did not counsel the applicant during the preparation and submission of the DD Form 2656-5.  It appears they simply completed the form and that the applicant did not ask any questions of her. 

6.  He provides two DD Forms 1172 showing he enrolled his spouse in DEERS on 22 May 2008 and portions of his iPERMS records showing he updated his military records by adding his Certificate of Marriage.  

7.  There is no evidence in his military records showing he intended to change his RCSBP election prior to 27 March 2012 (4 years, 2 months, and 9 days after the date of marriage).  

8.  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 (and participate in SBP), 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.  

9.  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.  

10.  Title 10, U.S. Code, section 1448(b)(1)(B) provides that an SBP election of insurable interest may be terminated.  Participation in the SBP shall be discontinued effective on the first day of the first month following the month in which the request for termination is received by the Secretary concerned.  Section 1448(b)(1)(E) provides that premiums will not be refunded.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his records should be corrected by changing his RCSBP election from insurable interest to spouse-only coverage has been carefully considered.  

2.  It appears that since he had completed an RCSBP election form in 2006, he would have noted that spouse coverage was an authorized election; yet, there is no evidence indicating that prior to 12 March 2012 the applicant notified proper officials that he intended to change his RCSBP election from insurable interest to spouse only coverage.  

3.  He provides documentation indicating he updated his records to show the change in his marital status; however, these documents failed to show that it was his intention to change his RCSBP election within 1 year of his marriage.  The documentation also failed to show that his failure to change his election within the time limits allotted by law was as a result of Government error, mismanagement, or other reasons which were beyond his control.  

4.  Based on the foregoing, there appears to be no basis to grant his request to change his RCSBP election to spouse-only given that it would be contrary to law. 

5.  The applicant is advised that he still has the option of cancelling his election of insurable interest; however, his next opportunity to enroll his spouse in the SBP will come if and when Congress next declares an open season.  

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 to amend the decision of the ABCMR set forth in Docket Number AR20120007344, dated 11 December 2012.



      _______ _  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)                                         AR20130022336



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ABCMR Record of Proceedings (cont)                                         AR20130022336



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