IN THE CASE OF:  

		BOARD DATE:  7 April 2015

		DOCKET NUMBER:  AR20140013118 


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, now deceased, requests correction of his records to show his current wife is the beneficiary of his Survivor Benefit Plan (SBP).
2.  The applicant states that he was never briefed that he could add a new spouse if he remarried.  He understands he would owe a debt back to the original date of eligibility.
3.  The applicant provides copies of a marriage certificate showing he married his current spouse, Cherry, on 30 March 2006 and a DD Form 2656-6 (SBP Election Change Certificate). 

4.  His current spouse provided a copy of the applicant's death certificate.

CONSIDERATION OF EVIDENCE:

1.  A U.S. Army Reserve Components Personnel and Administration Center, St. Louis, Missouri, letter, dated 12 December 1980, subject:  Notification of Eligibility for Retired Pay at Age 60, notified the applicant that he had completed the required years of service and would be eligible for retired pay, upon application, at age 60.  He was also informed that he was eligible to participate in the Reserve Component SBP (RCSBP).  He had 90 days to elect to participate in the SBP.

2.  A DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 1 February 1981, shows he was married to Anne and elected Option C (Immediate Coverage) Spouse Only at the Full Retired Pay Rate.

3.  He and Anne were divorced on 24 May 1982.  The divorce decree and accompanying property settlement do not contain any reference to the SBP.  Accordingly, by law, his RCSBP spouse coverage was suspended.

4.  U.S. Army Reserve Personnel Command Orders P-08-305607, dated 25 August 2000, shows he retired as a captain effective 29 December 2000.

5.  A DD Form 2656 (Data for Payment of Retired Personnel), dated in 2000, and submitted in conjunction with his application for non-regular retirement pay, shows he did not participate in the SBP because he did not have any eligible dependents.

6.  The applicant provided copies of a:

	a.  State of Arkansas Marriage License showing he married Cherry on 
30 March 2006; and

	b.  DD Form 2656-6, dated 9 July 2014, showing:

		(1)  An "X" was placed in item 8 (Remarriage) and an "X" in item (4) of item 8 indicating he was selecting coverage for his new spouse if his current coverage is former spouse.

		(2)  An "X" was placed in Section IV indicating he requested "Spouse Only" coverage; and 

		(3)  An "X" was placed in Section V indicating a level of coverage of "Full Retired Pay."

7.  His current spouse provided a State of Arkansas Death Certificate showing the applicant died on 13 September 2014.

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.  

9.  Public Law 95-397, the Reserve Component SBP, 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.  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 member’s 60th birthday; or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. 

10.  Public Law 99-145, enacted 8 November 1985, permitted a previously participating retiree upon remarriage to elect not to resume spouse coverage or to increase reduced coverage for the latter spouse (requiring a payback with interest of SBP premiums prior to first anniversary of remarriage).  Changes must be made prior to the first anniversary of remarriage or else the previously suspended coverage resumes by default on the first day of the month following the first anniversary of the remarriage, with costs owed from that date.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, now deceased, requested correction of his records to show his current wife is the beneficiary of his SBP.  The applicant stated that he was never briefed that he could add a new spouse if he remarried.  He understands he would owe a debt back to the original date of eligibility.

2.  His record shows he initially requested RCSBP for spouse only.  He was married to Anne at the time.  He and Anne divorced on 24 May 1982.  Their divorce decree does not reference the SBP.

3.  In 2000, he submitted his retired pay application stating he did not have any eligible dependents for the SBP.  This form is invalid as he had suspended SBP spouse coverage based on his initial election in 1981.

4.  He married Cherry in March 2006.

5.  He submitted a DA Form 2656-6, dated 9 July 2014, showing he requested spouse-only SBP coverage for Cherry at the full retired rate.

6.  In view of the foregoing, it would be appropriate to correct the applicant's records to show he timely notified DFAS of his remarriage thus bringing his spouse coverage out of suspension.

7.  The record should be corrected accordingly.  Any unpaid premiums for the SBP, as allowed by law, should be recouped from the annuity.



BOARD VOTE:

____X___  ____X___  ____X___ GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned by corrected by showing the applicant completed and returned a DD Form 2656 and related documents to the proper office on 1 April 2006, that they were received and processed by the proper office in a timely manner, and paying the applicant’s widow the SBP annuity, if eligible, retroactive to the day after his death.  Any unpaid premiums should be recouped from the annuity.



      ____________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)                                         AR2002076477



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ABCMR Record of Proceedings (cont)                                         AR20140013118



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