IN THE CASE OF:	  

		BOARD DATE:	  25 June 2015

		DOCKET NUMBER:  AR20140011952 


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 records to show his Reserve Component Survivor Benefit Plan (RCSBP) election as spouse-only coverage instead of natural person with insurable interest (NIP) coverage.

2.  The applicant states:

* his SBP spouse-only coverage for $24.20 was changed to NIP
* his NIP cost is much more expensive than spouse-only coverage
* in April 2010, he provided a copy of his marriage certificate for an identification card for his spouse
* he was unaware of anything else he needed to do until after he retired in July 2013
* the instruction given at his retirement seminar was to update the Defense Enrollment Eligibility Reporting System of any major changes

3.  The applicant provides:

* two timelines of events
* two DD Forms 2656 (Data for Payment of Retired Personnel), page 2
* two Defense Finance and Accounting Service-Cleveland (DFAS-CL) Forms 7220/148 (Retiree Account Statement), page 2
* DFAS letter, dated 6 March 2014
* SBP Adjustment Audit
* Congressional correspondence

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 26 July 1953.

2.  After having prior honorable service in the Regular Army, the applicant enlisted in the Army National Guard on 27 February 1982.

3.  On 2 October 1998, he was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

4.  On 10 December 1998, he completed a DD Form 1883 that shows he indicated he was not married, he had no dependent children, and he elected NIP coverage.  The form also shows he elected full coverage under option B (Age 60).  He named T____ A. H____ (then his fiancé and now his wife) as his NIP beneficiary.

5.  On 26 February 2005, he was honorably retired and transferred to the Retired Reserve.

6.  DFAS records show the applicant and T____ A. H____ were married on 17 March 2010.

7.  He reached age 60 on 26 July 2013.

8.  The applicant provided:

	a.  two timelines of events showing his attempts to correct his RCSBP beneficiary election.  He also provided copies of page 2 of his DD Forms 2656, dated 30 December 2011 and 26 July 2012, that show he married T____ A. H____ on 17 March 2010 and he elected spouse-only coverage based on full gross pay;

	b.  two copies of page 2 of his DFAS-CL Form 7220/148, undated, that show:

* his retired pay account was established on 26 July 2013
* his SBP spouse-only coverage was $24.20
* T____ A. M____ was the beneficiary for 100 percent of his arrears of pay and she was listed as his wife
* he had an NIP SBP election
* his SBP cost was $81.20
* his RCSBP cost was $24.85

	c.  a DFAS letter, dated 6 March 2014, with an SBP Adjustment Audit that shows:

* an adjustment to his RCSBP was made based on a mistake entered on his RCSBP election
* the adjustment was from immediate coverage to deferred coverage with an effective date of 26 July 2013 and as a result, his SBP cost was changed to $106.05
* he was overcharged for RCSBP since it was a retroactive change
* he was advised that any credit resulting from the adjustment would be applied to reduce any debt
* his SBP Adjustment Audit shows he had a credit subtotal for $201.38, a debt subtotal of $148.76, and a negative total of $52.62

	d.  Congressional correspondence, dated 11 March 2014, that shows DFAS had no record of receiving a notification of marriage from the applicant within 1 year of his marriage wherein he requested spouse-only coverage under the SBP; and 

	e.  Congressional correspondence, dated 15 May 2014, that shows his monthly RCSBP NIP coverage cost as $100.06.

9.  On 20 March 2015, the Army Board for Correction of Military Records advised the applicant to contact DFAS to determine the cost for spouse-only coverage should the Board grant his case.  This was to provide the applicant an opportunity to withdraw his case rather than incur a substantial debt.  He was also directed to notify the ABCMR of his decision to proceed or withdraw his application.

10.  On 8 April 2015, the applicant provided a response through his Congressman.  His response, dated 30 March 2015, shows he decided to proceed with his case and that he was advised by DFAS of the following:

* his spouse-only coverage would be 6.5 percent of his gross pay
* NIP coverage was more than spouse coverage
* incurring a substantial debt did not apply because he had overpayments for NIP coverage

11.  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.

12.  Title 10, U.S. Code, section 1448(a)(5), provides that a person who is not married or 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.  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.  Once a member elects either options B or C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP, and RCSBP coverage automatically rolls into SBP coverage.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his records to show his RCSBP election as spouse-only coverage instead of NIP coverage was carefully considered.

2.  The evidence of record shows the applicant elected NIP coverage on 10 December 1998 after receiving his 20-year letter.  He and his NIP were married on 17 March 2010.

3.  The law provides that an RCSBP/SBP election for an insurable interest beneficiary may be terminated at any time without the concurrence of the beneficiary.

4.  Although DFAS had no record of receiving a notification of marriage from the applicant within 1-year of his marriage wherein he requested spouse-only coverage under the SBP, spouse-only premiums were deducted from his pay.  Therefore, in the interest of justice, his records should be corrected to show he made a proper request for termination of his NIP coverage for spouse-only coverage and that it was received and processed in a timely manner effective 16 March 2011.

5.  Further, DFAS should audit his records and make the appropriate adjustments as a result of the above correction.

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 showing he made a proper written request to terminate his SBP NIP coverage on 16 March 2011, he elected spouse-only coverage, and his request was received and processed by DFAS effective 16 March 2011.



      _______ _   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)                                         AR20140011952



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ABCMR Record of Proceedings (cont)                                         AR20140011952



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