IN THE CASE OF:
BOARD DATE: 10 October 2013
DOCKET NUMBER: AR20130002842
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 DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate) to show the name of his current spouse.
2. The applicant states he was never told by Sergeant First Class RS that if any changes occurred his SBP election could be changed within 1 year of the change. He was divorced in 2007 and he remarried in 2008. His former spouse waived all rights in the divorce. He wants to make sure his current spouse gets any SBP benefits due upon his death.
3. The applicant provides a DD Form 1883, DD Form 2656-6 (SBP Election Change Certificate), memorandum, divorce decree, and a marriage certificate.
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant was born on XX February 1965. Having had prior active and Reserve service, he enlisted in the Army National Guard (ARNG) on 1 May 1991. He married his spouse Wanda on 24 May 1996. He attained the rank/grade of staff sergeant/E-6 on 2 September 2000.
3. On 6 November 2002, by memorandum, the Adjutant General's Office, Annville, PA, issued him a memorandum, subject: Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter). This memorandum notified the applicant that he had completed the required years of service and he would be eligible for retired pay upon application at age 60.
4. The applicant provides and his records contain a DD Form 1883, dated 15 November 2002, wherein it shows that at that time he was married to Wanda and had two dependent children. He elected Reserve Component SBP (RCSBP) "spouse and children" coverage, Option C (immediate coverage).
5. He was honorably separated from the ARNG on 20 December 2002 and he was transferred to the Retired Reserve on that date.
6. The applicant provides a divorcee decree, dated 11 October 2007, wherein it shows he and Wanda were divorced on that date. The divorce decree is silent on the subject of alimony, retired pay, and SBP.
7. He also provides a marriage certificate, dated 26 July 2008, wherein it shows he married his current spouse, Gloria, on that date.
8. The applicant will reach 60 years of age on XX February 2025.
9. 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 (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 members 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. Once a member elects either Options B or C in any category of coverage, that election is irrevocable. Option B and C participants do not make a new SBP election at age 60 and cannot cancel SBP participation or change options they had in RCSBP it automatically rolls into SBP coverage. SBP elections are made by category and not by name.
DISCUSSION AND CONCLUSIONS:
The evidence of record confirms that on 15 November 2002 the applicant selected RCSBP "spouse and children" coverage under Option C. Once a member elects either Options B or C in any category of coverage, that election is irrevocable. His DD Form 1883 correctly shows he elected spouse and children coverage. In addition, SBP elections are made by category and not by name. If he were to die before he reached age 60, the spouse he was married to at that time would be entitled to an annuity. Therefore, he is not entitled to the requested relief and there is no need for it. He should ensure the Defense Finance and Accounting Service is aware of his remarriage.
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) AR20130002842
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ABCMR Record of Proceedings (cont) AR20130002842
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