IN THE CASE OF:
BOARD DATE: 3 February 2015
DOCKET NUMBER: AR20140008134
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, the widow of a former service member (FSM), requests correction of the FSMs record to show he elected Survivor Benefit Plan (SBP) coverage for spouse and children.
2. The applicant states:
* the FSM falsified his DD Form 1883 (Survivor Benefit Plan Election Certificate) to reflect that he was not married
* she was not afforded the opportunity to be notified of his election and was denied her entitlements
* the FSM was eligible for full retirement
* she and the FSM were married on 25 April 1986 and never divorced or legally separated
* the FSM signed the DD Form 1883 on 7 December 1996
3. The applicant provides:
* DD Form 1883
* Marriage license
* Retirement orders
* Death certificate
* Letter from the Social Security Administration
CONSIDERATION OF EVIDENCE:
1. The FSM enlisted in the South Carolina National Guard on 3 April 1976. On
7 October 1997, he was placed on the State Retired List with an effective date of
3 April 1997.
2. The FSMs 20-year letter is not dated, but indicates it was prepared on
17 July 1996. On 7 December 1996, he completed a DD Form 1883. He indicated that he was not married. He elected to participate in the RCSBP for children only coverage, at full amount, and option C (immediate coverage). He listed two dependent children.
3. The applicant and the FSM were married on 25 April 1986. They remained married until the FSM died on 10 March 2005. The applicant is listed on the FSMs death certificate as the surviving spouse.
4. 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. 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. A member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60. If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.
5. Public Law 99-145 also provided that a married person who elects to provide an RCSBP may not, without the concurrence of the person's spouse, elect to provide an annuity for the person's spouse at less than the maximum coverage or to provide an annuity for a dependent child but not for the person's spouse.
DISCUSSION AND CONCLUSIONS:
1. The FSM completed a DD Form 1883 on 7 December 1996 (presumably within 90 days of receiving his 20-year letter) and elected to participate in the RCSBP for children only coverage. He failed to disclose that he was married.
2. The applicant and the FSM were married when he completed the DD Form 1883. The law provides that a married person who elects to provide an annuity may not provide an annuity for a dependent child but not for the spouse.
3. Once the FSM elected to participate in the RCSBP, he could not elect coverage for his children without providing coverage for his spouse.
4. In view of the foregoing, it would be appropriate and serve the interest of equity to correct the FSMs record to show a spouse and children RCSBP election.
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 be corrected by showing the FSM made a spouse and children RCSBP election based on the full amount of the FSM's retired pay.
_______ _ 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) AR20140008134
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