IN THE CASE OF:
BOARD DATE: 3 March 2015
DOCKET NUMBER: AR20140009043
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, in effect, his Survivor Benefit Plan (SBP) election be changed from spouse and children coverage to children only coverage.
2. He states his SBP designee is L____ C___ whose name is now L____ D_____. Her date of birth is 28 January 1950. She illegally remarried sometime in 2002 or 2003 without a divorce. She has been gone for 17 years and she could not be served divorce papers. She was working at Walmart in Fayetteville, NC as L____ D_____ and she didn't bother with a legal divorce.
3. He provides his Retiree Account Statement and his Complaint for Absolute Divorce.
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 14 July 1952. He completed prior service in the Regular Army and married L____ on 27 March 1987. He enlisted in the Army National Guard on 21 May 1990.
2. His notification of eligibility to receive retired pay at age 60 (20-Year Letter) is dated 14 December 1993. He completed a DD Form 1883 (SBP Election Certificate) on 10 April 1994. He enrolled in the Reserve Component SBP (RCSBP) for spouse and children coverage based on full gross pay, Option C. In Section III (Family Information), block 15 he listed one dependent child (son). He declined to elect coverage under the Reserve Component Supplemental Survivor Plan.
3. He provided a Complaint for Absolute Divorce, filed on 15 July 2003, which shows he requested an absolute divorce from L____. They were married on 13 March 1987, and they lived together as husband and wife until on or about 23 January 1998 when they separated. His final divorce decree is not available. His service record is void of evidence that shows he was ever granted a final divorce.
4. He was discharged from the Army National Guard on 1 December 2005 and transferred to the U.S. Army Reserve Control Group (Reinforcement). He reached age 60 on 14 July 2012.
5. Orders published on 30 November 2012 placed him on the Retired List, effective 14 July 2012, in the rank of specialist/E-4.
6. His Retiree Account Statement with an effective date of 2 October 2013 shows SBP spouse only costs had been deducted from his retired pay in the amount of $35.47 and RCSBP cost of $29.31.
7. 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.
8. 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. If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the members retired pay (costs for option C being the more expensive). 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. They cannot cancel SBP participation or change options they had in
RCSBP it automatically rolls into SBP coverage. If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60.
9. Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouses written concurrence for a retiring members election that provides less than the maximum spouse coverage.
DISCUSSION AND CONCLUSIONS:
1. The applicant enrolled in the RCSBP on 10 April 1994 and he elected spouse and children coverage. He was married to L____ and he had one dependent child at the time of his RCSBP election.
2. The applicant provided a Complaint for Absolute Divorce that was filed on 15 July 2003; however, his service record is void of evidence and he has not provided any evidence which shows he was granted a final divorce by the court. Therefore, it appears he is still married to L____.
3. His Retiree Account Statement effective 2 October 2013 shows SBP spouse only and RCSBP costs had been deducted from his retired pay.
4. Since the lawful beneficiary of the applicant's SBP is his spouse, L____, the ABCMR cannot take away her right to the SBP without her irrevocable consent or due process of law. Therefore, it would be inequitable to grant the applicants request at this time.
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) AR20140009043
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ABCMR Record of Proceedings (cont) AR20140009043
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