RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 25 January 2005
DOCKET NUMBER: AR20040000429
I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.
| |Mr. Carl W. S. Chun | |Director |
| |Mrs. Nancy L. Amos | |Analyst |
The following members, a quorum, were present:
| |Ms. Kathleen A. Newman | |Chairperson |
| |Mr. James E. Anderholm | |Member |
| |Ms. LaVerne M. Douglas | |Member |
The Board considered the following evidence:
Exhibit A - Application for correction of military records.
Exhibit B - Military Personnel Records (including advisory opinion,
if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that the records of her deceased spouse, a
former service member (FSM), be corrected to show she was his lawful spouse
at the time he made his Reserve Component Survivor Benefit Plan (RCSBP)
election.
2. The applicant states that the FSM was never married to D___ and two of
the children, C___ and K___, listed on the DD Form 1883 (Survivor Benefit
Plan Election Certificate) are not the FSM's children. The applicant and
the FSM never divorced.
3. The applicant provides the DD Form 1883, the marriage certificate, and
the death certificate.
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 7 November 1957. After having had prior service in
the U. S. Marine Corps and the U. S. Army Reserve, he enlisted in the Army
National Guard on 16 November 1985. He and the applicant married on 8
April 1995.
2. The FSM's notification of eligibility for retired pay at age 60 (his 20-
year letter) is dated 3 July 2001. On 9 August 2001, the FSM completed a
DD Form 1883 declining to participate in the RCSBP by electing option A.
He listed D___ as his "spouse" on the form, with an indicated date of
marriage of 19 January 2001. Four dependent children are listed – two
"natural" children with his last name and two stepchildren (C___ and K___).
His "spouse" D___ signed the reverse of the DD Form 1883 and also a
Reserve Component Survivor Benefit Plan Concurrence Statement.
3. The FSM died on 17 February 2004. The applicant is listed as his
surviving spouse on the death certificate.
4. Information obtained from the U. S. Army Human Resources Command, DEERS
(Defense Enrollment Eligibility Reporting System) Policy office and from
the Defense Manpower Data Center revealed that there was no record of the
FSM having a spouse named D___.
5. 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. If death occurs before age 60, the RCSBP costs for options B and C are
deducted from the member's retired pay.
6. Public Law 106-398, enacted 30 October 2000, required written spousal
consent for a Reserve service member to be able to delay making an RCSBP
election until age 60. The law is applicable to cases where 20-year
letters have been issued after 1 January 2001. In other words, failure to
elect an option now or failure to obtain the spouse's concurrence results
in the default election of option C.
DISCUSSION AND CONCLUSIONS:
1. The information obtained from the U. S. Army Human Resources Command,
DEERS Policy office and from the Defense Manpower Data Center are accepted
as sufficient to substantiate the applicant's contention that she and the
FSM never divorced. Therefore, any marriage by the FSM to D___ would have
been invalid.
2. The FSM received his 20-year letter after passage of Public Law 106-
398. Since the FSM elected RCSBP option A, but since the applicant did not
give her concurrence with his election, she is entitled to receive the
RCSBP annuity under option C.
BOARD VOTE:
__jea___ __kan___ __lmd___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was 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:
a. showing that the FSM was married to the applicant at the time he
made his RCSBP election of option A but that she did not concur with his
election; and
b. paying to the applicant the RCSBP annuity retroactive to the FSM's
death.
__James E. Anderholm
CHAIRPERSON
INDEX
|CASE ID |AR20040000429 |
|SUFFIX | |
|RECON | |
|DATE BOARDED |20050125 |
|TYPE OF DISCHARGE | |
|DATE OF DISCHARGE | |
|DISCHARGE AUTHORITY | |
|DISCHARGE REASON | |
|BOARD DECISION |GRANT |
|REVIEW AUTHORITY |Mr. Schneider |
|ISSUES 1. |137.00 |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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