| Mr. Carl W. S. Chun | Director | |
| Ms. Nancy L. Amos | Analyst |
| Mr. Raymond V. O’Connor, Jr. | Chairperson | ||
| Ms. Margaret K. Patterson | Member | ||
| Mr. Arthur A. Omartian | Member |
2. The applicant requests, in effect, that the records of her deceased former spouse, a former service member (FSM), be corrected to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for former spouse coverage.
3. The applicant states that she and the FSM divorced in 1987 but continued to live together. When he enrolled in the RCSBP in 1992, he named her as his beneficiary but indicated her relationship as "spouse."
4. The FSM’s military records show that he was born on 6 February 1942. He had prior service in the Regular Army, the U. S. Army Reserve, and the Army National Guard. He and the applicant married on 30 April 1981. He enlisted in the U. S. Army Reserve on 30 December 1986.
5. The FSM and the applicant divorced apparently in December 1987. The divorce decree does not mention the SBP.
6. The FSM's notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 27 April 1992. On 10 August 1992, he completed a Survivor Benefit Plan Election Certificate, DD Form 1883, and elected to participate in the RCSBP for spouse only coverage, full base amount, option C. He named the applicant as his spouse and indicated they were married on 30 April 1981.
7. The FSM died on 22 November 2001. His death certificate indicated he was divorced.
8. The applicant applied for the SBP annuity on 20 March 2002. The U. S. Army Reserve Personnel Command approved her application (it cannot be determined on what basis, since she indicated in her application that she was the FSM's former spouse). The Defense Finance and Accounting Service (DFAS), however, denied her the annuity apparently because she was not the FSM's spouse.
9. 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. A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP. If death does occur before age 60, the premiums for options B and C are deducted from the annuity.
10. 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).
CONCLUSIONS:
1. Although the divorce decree did not mention the SBP, it appears that it was the FSM's intent to provide the RCSBP to the applicant, his former spouse, when he completed his DD Form 1883 in August 1992. It appears to be an inadvertent error on his part when he indicated her relationship as spouse instead of former spouse.
2. DFAS's denial of the SBP annuity to the applicant is not available. To ensure there is no problem concerning the date the DD Form 1883 was signed (more than 90 days after the FSM's 20-year letter was dated), his records should also be corrected to show he signed the DD Form 1883 within 90 days after receiving (the statutory requirement) his 20-year letter.
3. In view of the foregoing, the FSM’s records should be corrected as recommended below.
RECOMMENDATION:
1. That all of the Department of the Army records related to this case be corrected by showing that the FSM completed his DD Form 1883 within 90 days after receiving his 20-year letter and elected to participate in the RCSBP for former spouse coverage, full base amount, option C.
2. That the applicant be paid the RCSBP annuity as a result of the above correction retroactive to 22 November 2001, the date of the FSM's death.
BOARD VOTE:
__RVO__ __MKP _ __AAO __ GRANT AS STATED IN RECOMMENDATION
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
__Raymond V. O’Connor, Jr. _
CHAIRPERSON
| CASE ID | AR2002076772 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 2002/10/01 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | GRANT |
| REVIEW AUTHORITY | |
| ISSUES 1. | 137.04 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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