IN THE CASE OF:
BOARD DATE: 5 November 2013
DOCKET NUMBER: AR20130005616
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) as follows:
* Item 7 (Do you have dependent children) - from Yes to No
* Item 10 (Name of Spouse) from Shannon to Michelle
* Item 11 (Spouse Social Security (SSN) Number) from current SSN to a different SSN
* Item 12 (Spouse Date of Birth) from current date to a different date
* Item 13 (Place of Marriage) from Gatlinburg, Sevier, TN, to Berea, Madison, KY
* Item 14 (Date of Marriage) from 15 August 1998 to 18 September 2011
* Item 15 (Unmarried Dependents) remove the name Adam and associated administrative data under current entry
2. The applicant states he was not told he needed to make a change to this form within 1 year of his marriage.
3. The applicant provides:
* DD Form 1883
* Two-page divorce decree
* Marriage license
CONSIDERATION OF EVIDENCE:
1. The applicant's records show he was born in February 1960. He and Shannon were married on 15 August 1998.
2. He enlisted in the Kentucky Army National Guard (KYARNG) on 11 February 1987. He served through multiple extensions and he attained the rank/grade of master sergeant (MSG)/E-8.
3. On 20 March 2001, the KYARNG issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).
4. On 5 April 2001, the KYARNG published Orders 095-816 transferring him to the Retired Reserve effective 28 February 2001.
5. On 8 April 2001, he completed a DD Form 1883 wherein he indicated he was married and had dependent children. He elected spouse Reserve Component SBP (RCSBP) under Option C (immediate coverage) based on the full amount. His spouse Shannon concurred with his election. The DD Form 1883 shows in:
* Item 7, he indicated he had dependent children
* Item 10, the name of his spouse at the time
* Item 11, the SSN of his spouse at the time
* Item 12, the date of birth of his spouse at the time
* Item 13, the place where he married his spouse at the time
* Item 14, the date of birth of his spouse at the time
* Item 15, he listed his dependent children and their SSNs and dates of birth
6. He provides a divorce decree that shows he and Shannon were divorced on 9 September 2009. This decree is silent with respect to the SBP.
7. He also provides a marriage certificate that shows he and Michelle were married on 18 September 2011.
8. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP 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, was irrevocable except in certain circumstances. It
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 to provide an annuity for their survivors should they die before reaching age 60.
10. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP coverage for former spouses of retiring members. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (including Reservists).
11. Public Law 106-398, dated 30 October 2000, requires that upon receipt of the 20-year letter, a qualified Reserve Component member who is married will automatically be enrolled in the RCSBP under option C (spouse and children coverage) based on the full amount unless the spouse's concurrence is provided to allow one of the following elections: Once a member elects either option B or option 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. They cannot cancel SBP participation or change options they had in RCSBP - the options automatically roll into SBP coverage.
12. Title 10, U.S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP. It permits a person to elect to provide an annuity to a former spouse. Any such election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date of the decree of divorce.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends his DD Form 1883 should be updated with the current spouse information. There is no legal/statutory requirement or need to do so.
2. When the applicant received his 20-year letter he executed a DD Form 1883 electing spouse RCSBP coverage, under Option C (immediate coverage) based on the full amount. The applicant and his spouse, Shannon, were divorced in 2009. Their divorce decree did not address the SBP.
3. SBP and/or RCSBP elections are made by category, not by name. A spouse loses eligibility as an SBP beneficiary upon divorce. There is no provision in the SBP which makes former spouse coverage an automatic benefit. The only means by which the divorced spouse may receive a survivorship annuity is if former spouse coverage is elected. By law, a signed election request must be received before action can be taken to establish former spouse election.
4. The applicant did not make a former spouse election. Therefore, his existing DD Form 1883 remains valid i.e., "spouse" coverage, and there is no reason or need to change any entries on the DD Form 1883. In the event he dies, his current spouse (that is, his widow) - regardless of the name listed on the DD Form 1883- is entitled to the SBP annuity if they had been married for at least one year.
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) AR20130005616
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