IN THE CASE OF:  

		BOARD DATE:  17 November 2011

		DOCKET NUMBER:  AR20110009608


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 her records to show her last name change and to receive a refund of the money she paid into the Reserve Component Survivor Benefit Plan (RCSBP).

2.  The applicant states she changed her last name from D____-E____ to D____ when she divorced her husband on 30 March 2011.  She had not been with her husband since January 2007.  She was advised that she could change her beneficiary after she divorced, but she recently found out that she could not make her daughter the recipient of the benefits.  She feels she was misled and misinformed.

3.  The applicant provides a copy of her State of Michigan Judicial Circuit County Judgment of Divorce and State of Michigan Wayne County Circuit Court Family Division Order for Name Change.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 27 July 1950.  She was issued her 20-year letter in September 2003.  Her 20-year letter informed her that she would automatically be enrolled in the RCSBP under Option C, spouse and child(ren) coverage based on full retired pay, unless spouse concurrence was provided to allow for a less-than-full, immediate coverage spouse and child election.  She apparently did not make an RCSBP election at that time.    

2.  The applicant was ordered to active duty from the U.S. Army Reserve (USAR) on 5 November 2007 in support of Operation Iraqi Freedom as a sergeant major/E-9.

3.  On 25 December 2008, the applicant was released from active duty due to completion of required active service.  The last name recorded on her DD Form 214 (Certificate of Release or Discharge from Active Duty) is shown as D____-E____.

4.  U.S. Army Human Resources Command, St. Louis, MO, Orders P11-929754, dated 12 November 2010, announced she was placed on the Retired List effective 27 July 2010.  The last name recorded on the orders is shown as E____.

5.  In support of her request, the applicant provides a copy of her State of Michigan Judicial Circuit County Judgment of Divorce and State of Michigan Wayne County Circuit Court Family Division Order for Name Change, dated 30 March 2011.

6.  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.  An election, once made, is irrevocable except as provided by law.  

7.  The term “dependent child” means a person who is unmarried; is under 18 years of age or at least 18 but under 22 years of age and pursuing a full-time course of study in a high school, college, or comparable recognized educational institution; is incapable of self support because of a mental or physical incapacity existing before the person’s 18th birthday, or is the child of a person to whom the Plan applies including an adopting child, a step or foster child or a recognized natural child who lived with that person in a regular parent-child relationship.  

8.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who 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.  

9.  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 results in the default election of option C.

10.  The Defense Finance and Accounting (DFAS) has indicated that the applicant did not make an RCSBP election.  DFAS further stated that she will receive SBP premium credit for the period 1 April 2011 to 31 October 2011, when she did not have an eligible beneficiary due to her divorce.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of her records to show she changed her last name when she divorced her spouse.  She also requests a refund of all monies she has paid into the RCSBP.

2.  The evidence shows the applicant divorced her spouse and changed her last name on 30 March 2011, which was subsequent to her placement on the Retired List on 27 July 2010.

3.  There is no evidence that suggests the applicant has or would suffer any injury or injustice as a result of the Army maintaining its records with the name she served under.  For historical purposes, the Army has an interest in maintaining the accuracy of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  While it might be understandable that the applicant now desires the record show her current last name, in the absence of a showing of material error or injustice, there is a reluctance to recommend that those records be changed.

4.  The applicant is advised that a copy of this decisional document will be filed in the OMPF.  This should serve to clarify any questions or confusion in regard to the difference in the last name in her military record and to satisfy her desire to have her current last name shown in the OMPF.

5.  If it is the applicant's retired pay records that she wishes to update, DFAS has stated in previous cases that it is their policy to refer retirees to the U.S. Army Human Resources Command to approve a name change.  The applicant should therefore provide valid and officially authenticated supporting documentation to the:  Commander, U.S. Army Human Resources Command, ATTN:  AHRC-PDR-VI, 1600 Spearhead Division Avenue, Fort Knox, KY  40122, requesting they approve her name change and inform DFAS when it has been approved.

6.  With respect to her request for a refund of the monies she has paid into the RCSBP, because she received her 20-year letter in 2003 she was informed she would be automatically enrolled in the RCSBP for full spouse coverage unless she obtained her spouse’s concurrence for a different election.  DFAS has stated that she did not make an RCSBP election; therefore, she was enrolled for spouse coverage.

7.  It is not known if her children met the legal criteria for “dependents.”  If they did, she should contact DFAS with proof of birth/dependency.

8.  At this time, DFAS stated the applicant will receive premium credit for the period 1 April 2011 to 31 October 2011, when she did not have an eligible beneficiary due to her divorce.  RCSBP premiums will continue because of her failure to provide spousal concurrence to any declination of coverage within 90-days of receipt of her 20-year letter.  

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)                                         AR20100023544



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ABCMR Record of Proceedings (cont)                                         AR20110009608



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