| Mr. Carl W. S. Chun | Director | |
| Ms. Nancy L. Amos | Analyst |
| Mr. Raymond V. O’Connor, Jr. | Chairperson | ||
| Mr. Thomas B. Redfern, III | Member | ||
| Mr. Donald P. Hupman, Jr. | Member |
APPLICANT REQUESTS: That she be entitled to receive the Reserve Component Survivor Benefit Plan (RCSBP) annuity of her deceased former spouse, a former service member (FSM).
APPLICANT STATES: That the FSM had elected her as his RCSBP beneficiary; however, the U. S. Army Reserve Personnel Command informed her that she was not entitled to the annuity because they were divorced. The divorce decree stated that she was entitled to the SBP.
EVIDENCE OF RECORD: The FSM's military records show:
He was born on 21 February 1940. He initially served in the U. S. Army Reserve in 1957. He enlisted in the Regular Army on 3 December 1957 and was released from active duty on 2 December 1960. He reenlisted in the Regular Army on 3 February 1961. He and the applicant married on 2 May 1966. He was honorably discharged from the Regular Army on 23 February 1970. He enlisted in the Army National Guard on 4 November 1975.
Around 1984, the FSM was provided notification of eligibility for retired pay at age 60 (his 20-year letter). On 20 March 1984, he completed a Survivor Benefit Plan Election Certificate, DD Form 1883. He indicated in Section II, Marital, Dependency, and Election Status, that he elected to participate in the RCSBP for children-only coverage, reduced base amount ($300.00), option C. His spouse, the applicant, and his children were listed by name in Section III, Family Information. The applicant signed the form on the reverse.
The FSM was discharged from the Army National Guard on 3 November 1986 and transferred to the Retired Reserve after serving almost 24 years service creditable for pay.
On 24 May 1990, the FSM was found guilty of aggravated incest with his daughter, born on 6 May 1972. It cannot be determined when the incest began.
The FSM and the applicant divorced on 1 August 1990. The divorce decree stated in part, "The Court further finds that at the present time (the applicant) is named beneficiary under the Armed Services Survivor Benefit Plan…It is further ordered and decreed that (the FSM) shall immediately designate (the applicant) his former spouse beneficiary under the Armed Services Survivor Benefit Plan and that she shall continue to remain beneficiary as his former spouse under that plan."
The FSM died on 27 August 1994.
Public Law 92-425, the SBP, enacted 21 September 1972, 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. An election, once made, is irrevocable except as provided by law. The term “dependent child” means a person who is unmarried; is under 18 years of age or at least 18 but under 22 years of age and pursuing a full-time course of study in a high school, college, or comparable recognized educational institution; is incapable of self support because of a mental or physical incapacity existing before the person’s 18th birthday, or is the child of a person to whom the Plan applies including an adopted child, a step or foster child or a recognized natural child who lived with that person in a regular parent-child relationship.
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 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. If the member was married but elected not to participate at the maximum level or elected to provide an annuity for a dependent child but not for his spouse, that member’s spouse would be notified of that election.
Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP coverage for former spouses of 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 member was participating in the SBP or was still on active duty and had not yet made an SBP election.
Public Law 101-189, enacted 29 November 1989, established an Open Season to be conducted 1 October 1991. Public Law 101-510, enacted 5 November 1990, delayed the start of the third Open Season to 1 April 1992 – 31 March 1993.
Title 10, U. S. Code, section 1448(b)(3)(A)(i) states that a person who is a participant in the SBP and is providing coverage for a spouse or a spouse and child and who has a former spouse who was not that person's former spouse when that person became eligible to participate in the SBP may elect to provide an annuity to that former spouse.
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. The FSM completed a DD Form 1883 in March 1984 and elected to participate in the RCSBP for children-only coverage. He did not elect spouse or spouse and child coverage. Elections are made by category, not by name. Confusion may have resulted because the applicant's name was listed in Section III; however, the RCSBP election was made in Section II. The applicant was aware of his election as she had signed the DD Form 1883.
2. Since the FSM had not elected spouse or spouse and child coverage upon becoming eligible to participate in the RCSBP, by Federal law he was not authorized to elect former spouse coverage no matter what the State Court may have ordered.
3. The Board is empathetic with the circumstances which appear to have led to the applicant divorcing the FSM. It is noted, however, that she was married to the FSM for only 15 of the more than 23 years of the FSM's military career.
4. Regrettably, 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
__RVO__ __TBR _ __DPH __ DENY APPLICATION
| CASE ID | AR2002076503 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 2002/11/07 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 137.01 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
ARMY | BCMR | CY2004 | 20040004501C070208
The 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 and children coverage. 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 member was participating in the SBP or was still on active duty and had not yet made an SBP...
ARMY | BCMR | CY2009 | 20090020974
Counsel requests, in effect, that the records of the FSM be corrected to show: * the applicant is entitled to Survivor Benefit Plan (SBP) benefits * the applicant is eligible to receive 20 percent of the FSM's retired pay 2. The divorce decree indicated that the applicant was to receive 20 percent of the FSM's retired pay. 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...
ARMY | BCMR | CY2001 | 2001066198C070421
The Retirement Services Noncommissioned Officer for the Tennessee Army National Guard states that she believes the FSM was not properly counseled as to how inexpensive coverage for his daughter would have been and on how to change his Survivor Benefit Plan Election Certificate, DD Form 1883, upon a change of dependency (such as divorce). Although as of 19 March 2002 records at DFAS still indicate that the FSM’s former spouse was his SBP beneficiary, they did not have any divorce documents...
ARMY | BCMR | CY2011 | 20110018472
Counsel requests correction of the FSM's records to show he changed his SBP election from spouse to former spouse coverage. However, DFAS was unable to release any detailed information pertaining to the FSM's retired pay account due to the Privacy Act of 1974. l. ABCMR Docket Number AR2003083486, dated 27 March 2003, corrected the military records of a FSM to show that the FSM requested to change his SBP coverage to former spouse and children coverage and that his request was received and...
ARMY | BCMR | CY2002 | 2002068814C070402
The FSM’s widow submitted an application dated 14 April 2002 (AR2002074719) to the Board requesting she be granted the RCSBP annuity. 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: Even if the will had “granted” the RCSBP to the applicant, she could not have received it because, again, she was not his spouse.
ARMY | BCMR | CY2014 | 20140017311
The applicant, the former spouse of a former service member (FSM), requests, in effect, correction of the FSM's records to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) and changed his election from spouse to former spouse so that she may be entitled to an annuity. She provides: * Applicant's self-authored statement * Divorce Decree * State of Ohio Certificate of Death * Memorandum, Subject: Notification of Eligibility for Retired Pay at Age 60 (20-year letter),...
ARMY | BCMR | CY2010 | 20100026574
She states: * the FSMs RCSBP election was for spouse and children coverage * she divorced the FSM, but his RCSBP election was not changed * the FSM died on 29 May 2004 * she submitted paperwork to the Department of Veterans Affairs (VA) for death benefits in November 2005, but her claims were denied * the Army National Guard was not aware of the FSMs death 3. The FSM and the applicant divorced on 6 September 2000. It is therefore appropriate as a matter of equity to correct the FSM's...
ARMY | BCMR | CY2006 | 20060016263C071029
The applicant provides their divorce decree; the FSM’s DD Form 1883 (Survivor Benefit Plan Election Certificate); the FSM’s DD Form 2656, and the FSM’s obituary. 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 member was participating in the SBP or was still on active duty and had not yet made an SBP election. Notwithstanding his widow informing the Board analyst that she was actively...
ARMY | BCMR | CY2006 | 20060016301
The applicant requests, in effect, that the records of her former spouse, a deceased former service member (FSM), be corrected to show he changed his Reserve Component Survivor Benefit Plan (RCSBP) coverage to children only coverage. The applicant provides a DD Form 2656-7 (Verification for Survivor Annuity), dated 4 October 2006; the FSMs 20-Year letter; a death certificate; a DD Form 1883 (Survivor Benefit Plan Election Certificate), date 9 January 2000; a marriage license; a divorce...
ARMY | BCMR | CY2009 | 20090004943
Title 10, U.S. Code, section 1450(f)(3)(A) permits a former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a proceeding of divorce. The evidence of record also shows the FSM and the applicant were divorced on 30 May 2000 and their divorce decree did not indicate continued coverage under the SBP as a former spouse. There is also no evidence the FSM notified DFAS within...