BOARD DATE: 6 January 2011
DOCKET NUMBER: AR20100009520
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 military records to show he elected the Survivor Benefit Plan (SBP) for spouse coverage.
2. The applicant states:
* he sent the papers back to Fort Dix, NJ, in August 2009 and he was told they would be mailed
* he got a letter in December 2009 stating he did not mail the paperwork back within a one-year period after his marriage, which is wrong
3. The applicant provides:
* a DD Form 214 (Report of Transfer or Discharge)
* a DD Form 2656-6 (SBP Election Change Certificate)
* his Marriage Certificate, dated 1 November 2008
* his spouse's birth certificate
* a DD Form 1883 (SBP Election Certificate), dated 22 May 1994
* a Reserve Component Supplemental SBP Election Certificate
* his divorce decree, dated 13 April 2006
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 8 August 1947. Having prior active service in the Regular Army and inactive service in the U.S. Army Reserve, he enlisted in the Army National Guard on 9 February 1972.
2. The applicant married L--- on 19 June 1993.
3. On 3 March 1994, the applicant received his Notification of Eligibility for Retired Pay at Age 60 (20-year letter).
4. The applicant's DD Form 1883, dated 22 May 1994, shows he enrolled in the Reserve Component SBP (RCSBP) for spouse coverage, full base amount, option B. Section II of this form stated, IMPORTANT: The decision you make with respect to participation in this Survivor Benefit Plan is a permanent irrevocable decision. Please consider your decision and its effect very carefully.
5. On 8 February 1996, the applicant was honorably discharged from the Army National Guard and he transferred to the Retired Reserve.
6. The applicant and L--- divorced on 13 April 2006.
7. The applicant turned age 60 on 8 August 2007.
8. The applicant remarried L--- on 1 November 2008.
9. The Defense Finance and Accounting Service (DFAS) indicated they did not accept the applicant's DD Form 1883 because they could not confirm when the applicant divorced L---.
10. In support of his claim, the applicant provided a DD Form 2656-6, dated
24 June 2009, which shows he elected to resume his existing level of coverage (spouse only) for his remarried spouse.
11. Public Law 92-425, the SBP, enacted 21 September 1972, 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. 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 members 60th birthday; and
c. elect that a beneficiary receive an annuity immediately upon their death if before age 60.
13. Public Law 94-496, enacted 14 October 1976 but effective 1 October 1976, provided that spouse costs would be suspended if marriage ends in death or divorce.
DISCUSSION AND CONCLUSIONS:
1. Evidence of record shows the applicant was married to L--- when he elected spouse coverage, option B, on 22 May 1994. He divorced L--- on 13 April 2006. He turned 60 in August 2007 and he applied for his non-regular retired pay. He remarried L--- on 1 November 2008.
2. Since he did not divorce L--- until years after he elected spouse coverage, his DD Form 1883 should have been accepted for processing his spouse coverage election.
3. His SBP coverage should have been suspended until his remarriage. However, his premiums should begin at his 8 August 2007 60th birthday due to the fact that he married the same woman for whom he originally elected spouse coverage.
BOARD VOTE:
__x_____ ___x_____ __x_____ 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 his DD Form 1883 for spouse coverage, option B was accepted and processed in a timely manner; and
b. showing SBP costs were suspended and then restarted at the appropriate times, taking into account the 13 April 2006 divorce, his turning age 60 on 8 August 2007, and his remarriage to the same spouse on 1 November 2008.
__________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) AR20100009520
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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