IN THE CASE OF:	  

		BOARD DATE:	  20 May 2010

		DOCKET NUMBER:  AR20090017316 


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 his enrollment in the Survivor Benefit Plan (SBP) be terminated and that he be reimbursed all SBP premiums deducted from his retired pay.  

2.  The applicant states the following:

* He enrolled in the SBP for his spouse
* He has recently found out he was not legally married to N____ L. W_____
* SBP premiums have been deducted from his retired pay
* N____ L. W_____ will not be eligible for an SBP annuity if he passes away
* He has no current beneficiary 

3.  The applicant provides a letter from the Kansas Department of Health and Environment, dated 31 August 2009, in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 16 February 1948.  He married his first wife on 18 January 1975 and they were divorced in June 1977.  

2.  The applicant completed prior active and inactive service and he enlisted in the Army National Guard on 7 March 1984.  



3.  The applicant’s notification of eligibility for retired pay at age 60 (20-Year Letter) is dated 13 January 1993.    

4.  On 19 June 1993, the applicant completed a DD Form 1883 (SBP Election Certificate) and enrolled in the RCSBP for dependent child coverage only, full base amount, Option A (Defer).  His RCSBP Election Certificate indicates he was not married at the time of his election.  

5.  The applicant was released from the Army National Guard and assigned to the Retired Reserve effective 1 October 1993.

6.  On 25 July 2007, the applicant completed a DD Form 2656 (Data for Payment of Retired Personnel) and elected SBP for spouse only coverage.  Block 27 (Level of Coverage) on his DD Form 2656 does not show his level of coverage.  He indicated he was married and named N_____ L. S_________ as his beneficiary.  This form shows he married N_____ L. S_________ on 25 April 1997 in Junction City, KS.  

7.  The applicant reached age 60 on 16 February 2008.  He applied for retired pay on an unknown date.

8.  The applicant provided a 31 August 2009 letter from the Kansas Department of Health and Environment addressed to N_____ W____.  The letter shows the following:

* A search of records for 1993 through 1997 was conducted based on the information provided 
* No marriage certificate was located 
* She was advised to contact the Clerk of the District Court in the county where the event took place

9.  In a 9 April 2010 email, the Defense Finance and Accounting Service (DFAS) informed a staff member of the following:

* The applicant had named N____ L. S________ as his spouse and beneficiary in his SBP election
* The retired pay system reflects SBP spouse coverage based on full gross pay for N_____  L. S_________
* Letter received on 11 January 2010 from N_____ W____ stipulated she was never married to the applicant 
* N_____ W____ requested SBP be terminated
* The applicant would have to prove he was never married by providing a letter from the clerk of courts from his home of domicile
10.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide an annuity after death to surviving dependents.

11.  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:  

* Option A -  elect to decline enrollment and choose at age 60 whether to 
start SBP participation
* Option 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
* Option C - elect that a beneficiary receive an annuity immediately upon 
their death if before age 60

12.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a one-year period, beginning on the 
second anniversary of the date on which their retired pay started, to withdraw from SBP.  The spouse’s concurrence is required.  No premiums will be refunded to those who opt to disenroll.  Reservists who elected an option under the RCSBP will continue to have the Reservist Portion cost deducted from their retired pay.  The effective date of termination is the first day of the first calendar month following the month in which the election is received by the Secretary concerned.

13.  The applicant, when he applied for retired pay and listed N.W. as his spouse, lived in Kansas.  Kansas allows common law marriages (Whetstone v. Whetstone, 178 Kan. 595, 290 P. 2d. 1022 (Kan. 1955); K.S.A. 23-101.  Even if he did not have a formal document attesting to his Kansas marriage, he and N.W. were legally married since they held themselves out as husband and wife.  Though they now live in Arizona (which does not allow common law marriage) Arizona honors common law marriages from another state.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been carefully considered.  However, the applicant’s service record does not contain sufficient evidence on which to grant relief in this case.  

2.  The evidence of record shows the applicant received his 20-Year Letter on 13 January 1993.  He completed the DD Form 1883 and elected dependent child only coverage, Option A.  He was not married at the time.  
3.  The applicant retired on 1 October 1993.  

4.  The applicant completed a DD Form 2656 in July 2007 and elected SBP spouse coverage.  He named N_____ L. S_________ as his spouse.  The retired pay system at DFAS indicates the applicant elected SBP spouse coverage based on full gross pay for N_____ L. S_________.

5.  The 31 August 2009 letter from the Kansas Department of Health and Environment performed a search of records for the period 1993 through 1997 and no marriage certificate was located.  This search was based on information provided by N____ W____.  

6.  The 9 April 2010 email from DFAS indicates that office received a letter from N_____ W____ in January 2010 in which she attested she was not married to the applicant.  However, she did not provide sufficient evidence to support her claim.  

7.  In the absence of compelling evidence to the contrary, there is a reluctance to change the applicant’s records to terminate his enrollment in the SBP for spouse coverage.  However, if the applicant can provide sufficient documents to verify he was not married at the time of his SBP election (either formally or as a common law marriage in Kansas), he can reapply.

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)                                         AR20090017316



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ABCMR Record of Proceedings (cont)                                         AR20090017316



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