MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 September 2001
         DOCKET NUMBER: AR2001059331

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Kenneth W. Lapin		Member
Ms. Paula Mokulis		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that the records of her deceased former spouse, a former service member (FSM), be corrected to show he changed his Reserve Component Survivor Benefit Plan (RCSBP) coverage to former spouse coverage.

APPLICANT STATES: That the position taken by the U. S. Army Reserve Personnel Command (AR-PERSCOM) is legally erroneous.

COUNSEL CONTENDS: In effect, that Title 10, U. S. Code, sections 1435(1) and 1450(A)(4) (sic) entitle the applicant to the annuity.

EVIDENCE OF RECORD: The FSM's military records show:

He was born on 12 August 1942. He enlisted in the Army National Guard in January 1964. He and the applicant married on 25 November 1966. The FSM was appointed a warrant officer in the Army National Guard in April 1973. His notification of eligibility for retired pay at age 60 (his 20-year letter) is not available. He should have received it sometime in 1984. On 15 May 1984, he completed a Survivor Benefit Plan Election Certificate, DD Form 1883, electing to enroll in the RCSBP for spouse and children coverage, option B, full base amount.

The FSM was transferred to the Retired Reserve on 1 August 1984.

On 3 August 1998, the FSM and the applicant divorced. The divorce decree is not available. However, in AR-PERSCOM letter dated 15 June 2001 they noted that the applicant’s Property Settlement dated 10 July 1998 was incorporated into the divorce decree by reference and was signed by both parties. The Settlement did not award the SBP annuity or insurance to the applicant.

The FSM died on 5 November 1999.

Public Law 87-381, enacted 4 October 1961, enacted the Retired Serviceman’s Family Protection Program (RSFPP).

Public Law 92-425, enacted 21 September 1972, repealed the RSFPP and 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 (spouse, spouse and children, children only, former spouse, former spouse and children, or insurable interest). An election, once made, is irrevocable except under certain circumstances permitted by law.

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 member’s 60^th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. If death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity.

Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses for retiring members.

Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP. It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election. Any such election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date of the decree of divorce. If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made. Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within one year of the date of the court order or filing involved.

Title 10, U. S. Code, sections 1431 – 1446 pertains to the RSFPP. Section 1450
pertains to payment of the RCSBP/SBP annuity to beneficiaries. Section 1450(a)(4) pertains to payment of the annuity to a person under insurable interest coverage. There is no section “1450(A)(4).”

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
2. The applicant’s counsel is incorrect in contending that Title 10, U. S. Code, section 1435(1) entitles the applicant to the RCSBP annuity. Sections 1431 through 1446 refer to the RSFPP, which was superseded by the SBP and therefore do not apply in this case. There is no section 1450(A)(4). If counsel meant section 1450(a)(4), that section applies to payment of the annuity to a person under insurable interest coverage, which also does not apply in this case.

3. An RCSBP/SBP election once made is irrevocable; however, elections are made by category. As AR-PERSCOM mentioned, the applicant was not the FSM’s “spouse” at the time of his death. She did not provide the divorce decree or the property settlement but it appears AR-PERSCOM did review those documents and they did not award her the SBP. Therefore, there is no evidence to show that it was the FSM’s intent or that he was ordered to provide former spouse coverage. (If SBP was not previously ordered, the applicant could return to the court and request the court amend the decree to order it. She would then have one year from the date of the amendment to make a request for a deemed election with no need to return to the Board.) If there had been, since the FSM had elected option B coverage the applicant would not have been entitled to the annuity until August 2002, the age the FSM would have turned age 60.

4. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__rjw___ __kwl___ __pm____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001059331
SUFFIX
RECON
DATE BOARDED	20010920
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	137.04
2.
3.
4.
5.
6.