IN THE CASE OF:	  

		BOARD DATE:	  6 March 2015

		DOCKET NUMBER:  AR20140010677 


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, amending the records of her late husband, a former service member (FSM), to show he elected "spouse only" Reserve Component Survivor Benefit Plan (RCSBP) coverage.

2.  The applicant states her late husband elected "children only" RCSBP coverage.  She believes that the record is unjust because her husband never updated his RCSBP beneficiaries.  They were married for 15 years.  From the date of their marriage to the date of his death they lived as husband and wife.  There were no separations.  Her husband's children are now adults.  This is the reason why she should be granted the beneficiary of his RCSBP.  She believes that he was unaware that he had to do any updating.  Her husband was honorably discharged from the U.S. Navy (USN) and was retired for the Army National Guard (ARNG) on 31 October 1996.

3.  The applicant provides copies of the following:

* FSM's:

* USN DD Form 214 (Certificate of Release or Discharge from Active Duty)
* divorce decree
* Notification of Eligibility for Retired Pay at Age 60 letter



* death certificate
* their marriage license

* her driver's license and social security card

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 24 March 1953.  He was appointed in the Georgia ARNG (GAARNG), as a second lieutenant, on 12 June 1982, with prior USN enlisted service.  

2.  The applicant provided copies of the following:

   a.  FSM's divorce decree which shows he and his first wife were granted a divorce on 6 October 1993.  The decree shows two children were born of that marriage and the FSM adopted the first wife's daughter, who was also a minor.  The decree did not stipulate the FSM would provide SBP coverage for his former wife and children.

   b.  A Notification of Eligibility for Retired Pay at Age 60 letter, prepared on 9 July 1996, wherein the FSM was notified of completion of the required years of service and eligibility for retired pay upon application.  The letter indicated an SBP Summary was enclosed.

3.  On 18 October 1996, the FSM completed and signed a DD Form 1883 (SBP Election Certificate).  He indicated he was not married and had a dependent daughter (born on XX June 1984) and a son (born on XX May 1987).  He elected "children only" coverage, Option C (immediate coverage) based on the full amount.  The form stated in:

   a.  Section III (Family Information) of the DD Form 1883, "I have the following unmarried dependent children under age 22 (or over age 22 and incapable of self-support because of a disability incurred before age 18, or after 18, but before age 22 while attending school)."

   b.  Monthly Cost and Annuity, "When all children cease to be eligible for an annuity, the additional cost for child coverage shall stop.  The reduction in cost is effective the first day of the month following that in which the last child ceased to be eligible for an annuity."

4.  The FSM was honorably discharged from the GAARNG on 8 January 1997 and was transferred to the Retired Reserve.

5.  The applicant also provided a copy of a License and Certificate for Marriage which shows she and the FSM were married on 7 December 1998.

6.  There is no evidence of record that the FSM elected to change his SBP coverage by adding spouse coverage within 1 year of the date of his marriage to the applicant (7 December 1999).

7.  The FSM's children ceased to be eligible for an SBP annuity on XX June 2006 and XX May 2009, respectively.

8.  The FSM reached age 60 on 24 March 2013.  There is no evidence he applied for retired pay at this time.

9.  The FSM died on 4 August 2013.  He was 60 years and 4 months of age.  His death certificate indicated that he was married to the applicant at the time and listed her as the informant.  

10.  The Soldier Management System, located on the U.S. Army Human Resources Command Integrated Web Service, shows on 3 March 2014 the applicant was advised in writing that the FSM never completed a DD Form 2656-6 (Election Change) to cover his first wife or her for over 15 years.

11.  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. Elections are made by category, not by name, and are irrevocable except as provided for by law.  Children remained eligible for coverage until age 18 or 22, if a student.  If disabled before age 18, or 22 if a student, children would remain eligible to receive the SBP annuity for life.  SBP costs for child coverage stop when there is no longer an eligible child beneficiary.

12.  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. 

13.  Title 10, U.S. Code, section 1448(a)(5), provides that a person who is not married and has no dependent child upon becoming eligible to participate in the SBP, but who later marries or acquires a dependent child may elect to participate in the SBP.  Such an election must be written, signed by the person making the 



election and received by the Secretary concerned within 1 year after the date on which that person marries or acquires that dependent child.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM executed a DD Form 1883 on 18 October 1996.  He indicated on the form he was not married and he elected "children-only" coverage for his minor daughter and son.  The FSM was separated from the GAARNG on 8 January 1997 and was transferred to the Retired Reserve.  The applicant and the FSM were married on 7 December 1998.  

2.  The FSM's children turned 22 years of age on XX June 2006 and XX May 2009, respectively and were no longer eligible beneficiaries.  If he wanted spouse coverage, by law, he would have been required to submit a written request for RCSBP spouse coverage within 1 year (7 December 1999) of his marriage to the applicant to become eligible to participate in the RCSBP.  There is no evidence of record and the applicant did not provide evidence showing this was done in a timely manner.

3.  By law, without an RCSBP election by the FSM, the applicant is not entitled to a RCSBP annuity.  Unfortunately the FSM died before making any such election. 

4.  The applicant has not provided sufficient evidence of intent on the FSM's part and the only intent clearly proven is that he elected and intended to provide child coverage only at the time of his retirement and any eligible date thereafter.  Therefore, there is no legal basis to grant the applicant 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 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)                                         AR20140010677





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ABCMR Record of Proceedings (cont)                                         AR20140010677



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