IN THE CASE OF:	  

		BOARD DATE:	  8 July 2014

		DOCKET NUMBER:  AR20130020233 


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 reconsideration of his earlier request for termination of his Survivor Benefit Plan (SBP) participation. 

2.  The applicant states, in effect, he wants to be released from this program and his money returned to him.  He enrolled in this program because of bogus information given to him by the clerk who was in a hurry to get his paperwork finalized. 

3.  The applicant provides:

* Divorce decree from LaRonna
* Consent Final Judgment and Decree from Victoria
* Marriage Record to Victoria
* Letter from the Defense Finance and Accounting Service (DFAS)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Copies of previous correspondence from the Board

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110003123, on 22 September 2011. 


2.  A review of the applicant's records shows: 

	a.  the applicant submitted his request for reconsideration on 22 August 2012.  A staff member of the Board advised him by letter, dated 13 September 2013, that in order to finalize the adjudication of his case the Board is requesting he provide a copy of his marriage certificate pertaining to his marriage to LaRonna;

	b.  on 10 October 2013, a staff member of the Board again advised the applicant that a copy of his marriage certificate to LaRonna is required and that his application would be placed on hold for 2 more weeks;. 

	c.  on 17 October 2013, he resubmitted his divorce decree from LaRonna and indicated that this decree shows the date they were married; and 

	d.  although he failed to provide his marriage certificate or any new documentary evidence, the Board considers his argument as new evidence and as such warrants consideration by the Board. 

3.  The applicant's records show he was born on 14 January 1958.  

4.  Having had prior service in the Regular Army (August 1976 to August 1979), the applicant enlisted in the Pennsylvania Army National Guard on 21 November 1979.  He entered active duty on 22 February 1982 and he was separated from active duty on 23 September 1990. 

5.  He enlisted in the U.S. Army Reserve on 13 July 1996 and in the Georgia Army National Guard on 28 September 2001. 

6.  On 19 September 2001, the U.S. Army Reserve Personnel Command issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter stated in paragraph 4: 

	a.  Public Law 95-397, 30 Sep 1978, created the Reserve Component Survivor Benefit Plan (RCSBP), in which you are entitled to participate.  RCSBP is your sole means of protecting your retired pay entitlement.  NOTE: Public Law 106-398, 30 Oct 2000, requires that upon receipt of this Letter, a qualified Reserve Component member, who is married, will automatically be enrolled in the RCSBP under Option C, Spouse and Child(ren) coverage based on Full Retired Pay, UNLESS  spouse concurrence is provided to allow one of the following elections:


* Option A (defer enrollment until age 60 when you apply for retired pay)
* Option B (enroll and pay an annuity when YOU would have been age 60): (1) Enroll spouse or spouse and child(ren) at LESS THAN the maximum level; (2) Enroll child(ren) only
* Option C (enroll and pay an annuity immediately upon your death) but: (1) Enroll spouse or spouse and child(ren) at LESS THAN the maximum level; or (2) Enroll children only

	b.  You must notify this Command, using the DD Form 1883, Survivor Benefit Plan - Election Certificate found in the enclosed booklet, of your decision within 90 days of the date of this Letter.  If you elect to remain covered under the automatic provision of the Law you must provide this Command written correspondence (the enclosed DD Form 1883 is preferred) stating who you have designated as your spouse and child(ren) annuitant(s).  The cost for this participation will commence upon your receipt of retired pay at age 60.  Detailed information concerning the RCSBP program and costs is enclosed.  ANY WRITTEN CORRESPONDENCE (letter or forms) THAT INVOLVE A CHANGE FROM FULL COVERAGE UNDER OPTION C FOR SPOUSE REQUIRE THE SIGNATURE OF YOUR SPOUSE BEFORE A NOTARY, OR A RETIREMENT SERVICES OFFICER AND ONE OTHER WITNESS.  FAILURE TO MEET THE REQUIREMENT WILL RESULT IN THE RETENTION OF FULL COVERAGE FOR YOUR SPOUSE AND CHILD(REN).  You may contact this Command for, answers to specific individual questions by dialing ……, extension x.

7.  There is no indication the applicant completed and/or submitted a DD Form 1883 within 90 days of receiving his 20-year letter. 

8.  On 16 November 2001, he entered active duty.  He subsequently served in Iraq from 16 May 2003 to 15 December 2003.  

9.  He was processed through the disability system and recommended for placement on the temporary disability retired list (TDRL).  

10.  On 14 February 2006, in connection with his TDRL retirement, he submitted a DD Form 2656 (Data for Payment of Retired Personnel).  He indicated he was married to LaRonna as of 25 April 1998 and they had four dependents, a stepdaughter and three sons.  He elected spouse and children SBP coverage based on the full amount.  He and a witness authenticated this form with their signatures. 


11.  He retired on 15 February 2006 by reason of temporary disability.  He was placed on the TDRL on 16 February 2006 in the rank/grade of staff sergeant/E-6. His DD Form 214 shows in item b (Nearest Relative), the name "LaRoona [sic] C---- La-----" and her address in Philadelphia. 

12.  On 29 June 2006, DFAS notified him by letter that their office did not receive a second DD Form 2656.  Therefore, his spouse and children SBP election is still valid.

13.  He previously provided and he now provides:

	a.  Marriage Record, issued by the Commonwealth of Pennsylvania, and shows he and Victoria were married.  The date is illegible.  This document also shows this is the applicant's second marriage and that his previous marriage ended in divorce on 18 December 1987; and  

	b.  Consent Final Judgment and Decree, issued in the Superior Court for the County of Upson, Georgia, on 6 February 2004, that states he and Victoria are divorced.  They had no children;  

	c.  a Complaint for Divorce, issued by the Court of Common Pleas of Franklin County, Ohio on 15 June 2010, that states he and LaRonna were married in Columbus, Ohio on 28 August 2006 and are divorced;

	d.  a notarized statement, dated 7 February 2011, from LaRonna concurring with his election to terminate the SBP.  She also states "I was not married to [Applicant] when in February 2006 when his election started."

14.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  

15.  Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse's written concurrence for a retiring member's election that provides less than the maximum spouse coverage.

16.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from SBP.  The spouse's concurrence is required.  No premiums will be refunded to those who opt to disenroll.  The effective date of termination is the first day of 

the first calendar month following the month in which the election is received by the Secretary concerned.  Extensive publicity was given in Army Echoes, the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his record be corrected to show he declined SBP coverage with his spouse’s concurrence.  He essentially claims that he was not properly briefed on the SBP and that he was not married at the time he made his election.  However, there is no independent evidence to support his contentions. 

2.  On 19 September 2001, the applicant received his 20-Year Letter.  There is no evidence to show he cancelled or deferred immediate RCSBP coverage.  Subsequently, the applicant was placed on the TDRL in February 2006 at which time he elected full spouse and children coverage under SBP.  

3.  The dates of his marriage are wildly fluctuating.  Although he previously provided a statement from his spouse who stated she was not married to the applicant in February 2006, the Complaint for Divorce indicated they were married on 28 August 2006, and his DD Form 2656 shows he married her on 25 April 1998 and at the time of his election on 14 February 2006 they were still married.

4.  Further, the relevant DD Form 214 supports the proposition that the applicant was indeed married to his current spouse at the time he made his election.  The DD Form 214 listed “Laroona” [sic] as his nearest relative and listed her address as the same Philadelphia address listed for the applicant.  He signed both forms authenticating the accuracy of the data and information. 

5.  In the absence of the primary document (i.e., the marriage certificate) it is presumed that the information he provided with his DD Form 2656 and DD Form 214 is correct and he was married when he retired.

6.  By law, the applicant he had a one-year period beginning on the second anniversary of his receipt of retired pay to formally cancel his SBP coverage by completing the appropriate form and submitting it to DFAS.  There is no evidence to show he complied with the instructions to terminate SBP within the required period.  Therefore, he is not entitled to 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20110003123, dated 22 September 2011.




      _______ _   _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)                                         AR20130020233



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ABCMR Record of Proceedings (cont)                                         AR20130020233



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