IN THE CASE OF:	  

		BOARD DATE:	    24 September 2015

		DOCKET NUMBER:  AR20140018300 


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, the widow of a former service member (FSM), requests that the records of the FSM be corrected to show he elected to change his Survivor Benefit Plan (SBP) coverage from "natural person with insurable interest" to "spouse only" coverage.

2.  The applicant states the FSM did not know that he had to change his SBP designation immediately upon his retirement.  The FSM submitted a letter, 
a DD Form 2656 (Data for Payment of Retired Personnel), a DD Form 2894 (Designation of Beneficiary Information), and a copy of his marriage certificate to the Defense and Accounting Service (DFAS) and he was not informed by DFAS that his request had been denied. 

3.  The applicant provides:

* DD Form 2656
* DD Form 2894
* Certificate of Marriage
* a letter from DFAS
* Certificate of Death

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 FSM's records show that he was born on 25 November 1939.  He was inducted into the Army of the United States on 8 May 1963 and was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) on 
6 May 1965.  He later enlisted in the USAR on 2 July 1965 and subsequently had a series of reenlistments in the USAR.

3.  On 10 August 1984, he was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified him that he had completed the required years of service and would be eligible for retired pay upon application at age 60.  

4.  On 22 August 1984, he completed a DD Form 1883 (SBP Election Certificate) which shows he elected to participate in the Reserve Component SBP (RCSBP) for "spouse (Irma) and children" coverage at the full rate under option C indicating immediate coverage after his death regardless of his age.
 
5.  On 5 March 1999, the FSM completed a DD Form 2656.  In Section IV (Federal Income Tax Withholding Information) he indicated that he was unmarried.  In Section VI (Dependency Information) he indicated that he did not have dependent children.  He elected to participate in the RCSBP with "natural person with insurable interest."  He listed his two sons as the persons having an insurable interest and as whom he wanted to receive the annuity.

6.  On 25 November 1999, he was placed on the Retired List.  

7.  The applicant and the FSM were married on 30 November 2002 and the FSM died on 2 July 2014.

8. There is no evidence in his military records showing he notified DFAS of his marriage within the 1-year statutory period. 

9.  Information from DFAS confirms an SBP annuity is currently being paid to the FSM’s natural person with insurable interest beneficiary.

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 (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.  

11.  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.  

12.  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 the FSM’s records should be corrected by changing his RCSBP election from "insurable interest" to "spouse-only" coverage has been carefully considered.  

2.  In connection with retirement, the FSM submitted an SBP election on                5 March 1999, wherein he elected coverage for an insurable interest beneficiary and named his sons as the beneficiaries of his SBP.  

3.  The law allowed him to terminate his natural person with insurable interest SBP coverage at any time and to add his spouse as an SBP beneficiary provided he submitted a spouse SBP election within 1 year of marriage to his current spouse.  

4. There is no evidence in his military records nor does the applicant provide any showing he notified DFAS of his marriage within the 1-year statutory period. 

5.  The applicant contends that the FSM submitted a request to change his SBP election to spouse only on 8 June 2010; however, even if he had submitted this request, it would have been outside of the 1-year statutory period.  The next opportunity for the FSM to change his SBP election would have come if and when Congress declared an open season.  Furthermore, SBP benefits are currently being paid to his insurable interest beneficiaries. 

6.  Based on the foregoing, there appears to be no basis to grant the applicant’s request to change the FSM’s RCSBP election to "spouse-only" given that it would be contrary to law. 

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)                                         AR20140018300



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ABCMR Record of Proceedings (cont)                                         AR20140018300



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