IN THE CASE OF:
BOARD DATE: 13 January 2011
DOCKET NUMBER: AR20100018059
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 that his 21 October 1999 Reserve Component (RC) Survivor Benefit Plan (SBP) election of option A (Defer) be changed to option C (Immediate Coverage).
2. The applicant states he is requesting that his RCSBP election of 1999 be changed from option A which deferred his election to age 60 to option C so his current spouse can be covered under the SBP. He further states he was not counseled that his election of option A would be closing the category for his spouse or any future spouse.
3. The applicant provides the following documents in support of his application:
* DD Form 2656-6 (SBP Election Change Certificate)
* marriage license
* DD Form 1883 (SBP Election Certificate).
* divorce decree
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 24 October 1959. On 13 August 1999, the Mississippi Army National Guard published a Notification of Eligibility for Retired Pay at Age 60 (20-year letter) for him. The notification informed the applicant he had completed the necessary qualifying service for retired pay at age 60.
2. On 21 October 1999, the applicant completed a DD Form 1883 in which he confirmed he was married and had dependent children. In item 9c the applicant elected option A and was referred to the reverse side of the form for the instructions related to his election. It further indicated that the decision made with respect to participation in the SBP was a permanent and irrevocable decision and advised the applicant to consider his decision and its effects very carefully. The instructions for option A on the reverse side of the form stated the applicant was declining to make an election at the time and that he would remain eligible to make an election for coverage at age 60. The instructions further stated if the member did not elect option B or C and died before reaching age 60, the survivor would not receive benefits. The applicant and his spouse at the time authenticated the election form, including their understanding of the instructions, with their signatures on 21 October 1999.
3. On 3 March 2006, the applicant and his spouse at the time of his SBP election were divorced.
4. On 11 July 2006, the applicant submitted a DD Form 2656-6 in which he indicated he was divorced and attempted to change to his SBP election to "children only."
5. On 21 October 2006, the applicant married his current spouse.
6. 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 RCSBP 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. An election, once made, is irrevocable except as provided for by law. RCSBP/SBP elections are made by category, and beneficiaries are not designated by name. For example, if a member elects "spouse only" coverage, in the case of divorce and remarriage, the spouse at the time of the member's death is entitled to receive the annuity unless "former spouse" coverage was elected subsequent to the divorce.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that his record should be corrected by changing his RCSBP election from option A to option C in order to provide coverage for his current spouse because he was not properly counseled has been carefully considered. However, there is insufficient evidence to support this claim.
2. By law, RCSBP/SBP elections are made by category, and beneficiaries are not designated by name. For example, if a member elects "spouse only" coverage, in the case of divorce and remarriage, the spouse at the time of the member's death is entitled to receive the annuity unless "former spouse" coverage was elected subsequent to the divorce. The law also stipulates that SBP plan elections are irrevocable unless allowed for under some other provision of law such as a Congressionally-authorized open season.
3. The evidence of record confirms the applicant submitted an RCSBP election of option A in 1999, thereby electing to defer his election decision until he reached age 60. It further confirms his spouse at the time concurred in that decision. The evidence further shows the DD Form 1883 contained instructions advising that if the applicant died prior to reaching age 60, no benefits would be provided. The form also informed the applicant that his election was irrevocable. As a result, there is an insufficient evidentiary basis to support granting the requested relief.
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 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) AR20100018059
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20100018059
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2007 | 20070005016C071029
John G. Heck | |Member | The Board considered the following evidence: Exhibit A - Application for correction of military records. His wife is a Master Sergeant in the U. S. Army Reserve and will have her own retired pay. Once a member elects either Options B or C in any category of coverage, that election is irrevocable.
ARMY | BCMR | CY2011 | 20110023565
The applicant states: * Upon his divorce in 2001, he notified officials at the Defense Finance and Accounting Service (DFAS) that he was divorced and did not want to participate in the SBP * When he applied for retired pay in January 2011, he and his new spouse elected not to participate in the SBP * When he received his first Retiree Account Statement, he noticed that he was enrolled in the SBP and his first wife was listed as the beneficiary * DFAS corrected the next pay statement by...
ARMY | BCMR | CY2009 | 20090020841
The applicant states the following: * he was never informed he had to decline the SBP within 1 year of his divorce from his former spouse * he received no written communications from the military to keep him informed of these circumstances * the Tennessee Army National Guard requested that he complete a DD Form 2656 (Data for Payment of Retired Personnel) in 2008 for inclusion in his application for retired pay * he completed the DD Form 2656 and declined SBP 3. On 18 October 1991, the...
ARMY | BCMR | CY2004 | 2004102499C070208
The applicant provides a letter from the U. S. Army Reserve Personnel Command (AR-PERSCOM, formerly ARPERCEN); his Retiree Account Statement effective 25 July 2003; his DD Form 1883; his DD Form 2656; his divorce decree; and his marriage license. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the member was participating in the SBP or was still on active duty and had not yet made an SBP...
ARMY | BCMR | CY2011 | 20110010224
IN THE CASE OF: BOARD DATE: 19 January 2012 DOCKET NUMBER: AR20110010224 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. The applicant requests, in effect, that his records be changed to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) within 1 year of marriage to his new spouse. He submitted an ARPC Form 3854 (RC Supplemental SBP Election Certificate), dated 22 June 2000, which shows he elected to decline coverage under the RCSBP.
ARMY | BCMR | CY2010 | 20100009520
The applicant requests correction of his military records to show he elected the Survivor Benefit Plan (SBP) for spouse coverage. 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. Evidence of record shows the applicant was married to L--- when he elected spouse coverage, option B, on 22 May 1994.
ARMY | BCMR | CY2010 | 20100007403
The applicant states: * When he retired he was married to his former spouse and they divorced in January 2007 * When he remarried in September 2007, he sent documentation to decline SBP * He believes this information is on record because no premiums were taken out of his retired pay until January 2010 * He has noticed that he now owes $1,700.00 in debt for this clerical error * He submitted paperwork for the "secondary beneficiaries" prior to the birth of his fourth child and his name was...
ARMY | BCMR | CY2010 | 20100028817
The form shows he elected spouse and children RCSBP coverage based on the full amount of retired pay and Option C (Immediate Coverage). The DD Form 2656-6 he submitted includes the following note below item 8: If either "Divorce" or "Death of Spouse" is selected, and the member has previously elected spouse and child coverage, the coverage would convert to "Child Only" coverage if the member has an eligible child. The evidence of record does not support the applicant's request to void his...
ARMY | BCMR | CY2014 | 20140004491
The applicant, the former spouse of a deceased former service member (FSM), requests in effect correction of her former husband's record to show he elected Survivor Benefit Plan (SBP) coverage for former spouse, and payment of the SBP annuity based on his death. The FSM and applicant were divorced on 26 September 2012. Unfortunately, there is no evidence the FSM changed his SBP coverage to "former spouse" coverage or the applicant deemed the election within one year of her divorce.
ARMY | BCMR | CY2014 | 20140013118
A DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 1 February 1981, shows he was married to Anne and elected Option C (Immediate Coverage) Spouse Only at the Full Retired Pay Rate. State of Arkansas Marriage License showing he married Cherry on 30 March 2006; and b. DD Form 2656-6, dated 9 July 2014, showing: (1) An "X" was placed in item 8 (Remarriage) and an "X" in item (4) of item 8 indicating he was selecting coverage for his new spouse if his current coverage is former...