BOARD DATE:	  13 September 2012

		DOCKET NUMBER:  AR20120008545 


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 Reserve Component Survivor Benefit Plan (RCSBP) election be changed to spouse only.

2.  The applicant states at the time he made his initial election he was not married.  He married Anna in February 2004 and submitted his marriage certificate and other pertinent documents at that time.  He believed that his paperwork would result in all aspects of his benefits and elections being converted.

3.  The applicant provides an 18 October 1989 court document showing separation from Pamela, a 14 August 2003 court document showing an uncontested termination of marriage from Susan, a Notification of Eligibility for Retired Pay at Age 60 (20-year letter), a 13 November 2002 RCSBP election form, a 29 February 2004 marriage certificate to Anna, and a 12 April 2012 RCSBP election form. 

CONSIDERATION OF EVIDENCE:

1.  The applicant, born on 5 December 1961, is a career Army National Guard (ARNG) sergeant first class who enlisted in the ARNG on 9 September 1982 and has served continuously since that date.  

2.  The applicant's available record contains very little information or documentation related to his service and marital status prior to 2008.  The official record contains a copy of a 3 January 1986 marriage certificate to Pamela C____ and the applicant provides a copy of a court document showing a date of separation from Pamela of 1 December 1988.  There are no documents relating to his marriage with Susan in the official records.

3.  The applicant completed 20 years of creditable service and was issued a    20-year letter on 16 September 2002. 

4.  On 13 November 2002, he completed an RCSBP election form indicating he was not married and had no dependent children.  He elected full annuity with immediate coverage (Option C) and designated his sister as an insurable interest beneficiary.  There is no evidence of any election prior to this one. 

5.  A California superior court document, titled "Appearance, Stipulation, and Waivers," was signed by the applicant and his counsel on 22 April 2003 and by Susan and her counsel on 15 July 2003.  It is date stamped as being filed by the court on 14 August 2003.  The document states "The appearance, stipulations and waivers apply to the issue of bifurcation and termination of marital status only." 

6.  The record does not contain a copy of the final divorce decree between the applicant and Susan.

7.  The applicant married Anna on 29 February 2004 and a copy of the marriage certificate is of record.  

8.  An August 2004 Authorization to Start, Stop, or Change Basic Allowance for Quarters (BAQ) and/or Variable Housing Allowance (VHA) form lists Anna as his wife.

9.  The applicant's record contains several Serviceman's Group Life Insurance (SGLI) election forms.  A 3 May 1997 SGLI form lists the principle beneficiary as Susan, and a child Jaymes as contingent beneficiary.  The next SGLI form of record is dated 22 April 2008.  This form lists Anna as principle beneficiary with the applicant's father and sister-in-law as contingent beneficiaries.

10.  A Record of Emergency Data, dated 3 May 1997, lists the applicant's dependents as his wife Susan, two step-children, and a son, Jaymes D. K____, born 5 July 1991.  The next Record of Emergency Data, dated 22 April 2008, lists his dependents as his wife Anna, a step-son, Julian, and a son, Jaymes.

11.  At some undocumented point the applicant was made aware that a specific form was required to have his current wife listed as his RCSBP beneficiary.  The DD Form 2656-5 (Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate) he submitted, showing Anna as his wife, is dated 27 April 2012.

12.  Public Law 95-397, 1978, provided RCSBP as 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; and 

	c.  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity (costs for option C being the more expensive).

13.  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.  

14.  Section 1448, Title 10, U.S. Code provides that if a person makes an election not to participate in the RCSBP, the person’s spouse shall be notified of that election.  Spousal concurrence is needed only when a married person elects to provide an annuity for his spouse at less than the maximum level or to provide an annuity for a dependent child but not for his/her spouse.

15.  The law provides that a person who is not married and has no dependent child upon becoming eligible to participate in the RCSBP but who later marries or acquires a dependent child may elect to participate in the RCSBP.  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child.  

16.  Insurable interest RCSBP coverage enables an unmarried member with no dependent children to name someone who has an insurable interest in the retiree as a beneficiary.  An unmarried member who has only one dependent child may name that child as an insurable interest beneficiary rather than as a beneficiary under child-only coverage.  Only one person can be named as an insurable interest beneficiary at one time.  Insurable interest coverage (not the member's former spouse) may be arbitrarily discontinued at any time by submitting a written request to the Defense Finance and Accounting Service (DFAS).

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not provided and the record does not contain a copy of the applicant's final divorce decree and/or attendant property settlement from Susan. 

2.  The court document provided by the applicant to show his divorce from Susan appears to indicate that he was still legally married as late as 14 August 2003, almost a year after he submitted his RCSBP election in 2002 claiming he was unmarried.  His date of marriage to Susan is unknown.

3.  Further, the applicant did have a dependent child at the time of his divorce from Susan and he continued to claim him as a dependent following his remarriage.  

4.  If the applicant was separated from Susan but the divorce was not yet final at the time he made the election, Susan would still legally have been his spouse.  As a legal spouse, the law requires that she be notified of the election and she would have had to concur with an election to decline maximum spouse and child coverage.  The available evidence does not clarify this situation.

5.  If the applicant was in fact legally married to Susan at the time he completed his RCSBP election he should provide the appropriate documents to DFAS so they may update his election to show spouse coverage (which would then carry over to his current spouse upon their first anniversary of marriage).  If he truly was not married at the time he completed his RCSBP election, it appears he will have to wait for a Congress to declare an Open Enrollment Season to enroll his current spouse in the RCSBP.

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)                                         AR20120008545





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ABCMR Record of Proceedings (cont)                                         AR20120008545



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