MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 8 April 2003
         DOCKET NUMBER: AR2002081929


         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
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Ms. Barbara J. Ellis		Member
Ms. Linda M. Barker		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)

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

APPLICANT STATES: In effect, she requests reconsideration of her request based on the enclosed certified copy of a Qualified Domestic Relations Order (QDRO) with incorporated exhibits, dated 24 June 2002, which was signed by a Superior Court Judge of Fayette County, Georgia.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR1999018077) on 21 October 1999.

As established in the original Board’s decisional document, the FSM and the applicant divorced on 12 October 1984, and the FSM died on 6 February 1997. Further, the applicant and the FSM entered into a QDRO that discussed the Delta Family Care Retirement Plan financed by Delta Airlines Inc. in 1994. The RCSBP is not mentioned in this QDRO.

On 17 June 2002, the applicant submitted a QDRO to a Superior Court Judge of Fayette County, Georgia, for his consideration and approval. In her letter requesting this action, the applicant stated that prior to that date, she had entered QDROs pertaining to the FSM’s retirement benefits from Delta Airlines and from the City of East Point, Georgia. However, she admitted that she had failed to obtain a QDRO with respect to the military retirement of the FSM.

The applicant also informed the Judge that the Army had failed to honor the provisions of her divorce degree and settlement pertaining to the FSM’s retirement benefits because the FSM failed to execute a RCSBP certificate at either of the two times allowed prior to his death on 6 February 1997. His first opportunity was when he was notified of his eligibility for retirement at age 60 on 3 December 1986. His second chance to elect RCSBP coverage would have been upon his application for retired pay at age 60, which he would have reached on 18 December 2006 had he not died.

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The applicant also claimed in her QDRO request that the FSM was unable to execute the RCSBP election when he was first notified of his eligibility in 1986 because he was disabled by a severe mental impairment, major depression. She supports this assertion with the fact that as a result of this condition, the FSM applied for and was granted social security disability benefits on 7 August 1996, retroactive to 1 March 1995. She further stated that it was obvious that the FSM suffered from this disabling condition much earlier, as evidenced by the fact he was hospitalized for this condition on three separate occasions between September 1990 and September 1995. The applicant finally claimed that it was important to note that a QDRO could be executed even though the retirement plan participant is deceased, and she cited what she claimed was the applicable case law.

A Superior Court Judge of Fayette County, Georgia, signed the court order in question on 24 June 2002. The order indicated that it was creating and recognizing the applicant’s right to receive a 1/3 share of the FSM’s United States Army Reserve Retirement Plan. However, the court order specified that the Plan Administrator (The Army) would make a determination as to whether or not the court order is a QDRO. Further, it stipulated that nothing in the order should be construed to require the Army to provide the applicant any type or form of benefit or any option not otherwise available to the participant under the plan. Finally, the court order in question specified that it was intended to be a QDRO made pursuant to the Retirement Equity Act of 1984 and its provisions should be administered and interpreted in conformity with that Act.

Public Law 95-397, the RCSBP, enacted on 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. The following three options are available: elect to decline enrollment and chose at age 60 whether to start SBP participation; elect that a beneficiary receive an annuity if they die before reaching age 60 but delay payment of it until the member’s 60^th birthday; or 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 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.

Public Law 97-252, the Uniformed Services Former Spouse Protection Act dated 8 September 1982, established SBP for former military spouses. This law also decreed that the State courts could treat military retired pay as community property in divorce cases if they so chose.

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Public Law 99-145, dated 8 November 1985, permitted retirees to elect SBP coverage for a former spouse under spouse coverage provisions vice insurable interest provisions.

Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage 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.

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 Board carefully considered the court order provided by the applicant and evaluated whether or not it should be considered a valid QDRO for RCSBP coverage purposes.

2. The evidence of record shows that the applicant and the FSM were divorced on 12 October 1984. As provided for by law in 1982, the settlement agreement contained the FSM’s agreement to pay the applicant 1/3 of his United States Army Reserve retired pay. Therefore, it is clear that had the FSM lived to age
60 and began to receive retired pay, the applicant would have been entitled to 1/3 of his retired pay. However, the divorce settlement contained no agreement in regard to an RCSBP annuity, and the law permitting divorce courts to order SBP coverage was not enacted until 14 November 1986.

3. The evidence also shows that in December 1986, some two years after the applicant and FSM were divorced, the FSM had the opportunity to make a RCSBP coverage election, and he chose not to do so. If it had been his intent to provide the applicant former spouse coverage, he could have done so at that time.

4. The Board takes special note of the applicant’s claim that the FSM was not capable of making an RCSBP election decision in 1986 because he suffered from a disabling condition. However, the Board finds the fact that the FSM was found to suffer from a disabling condition some 9 years after the fact does not prove that he was not capable of making this decision in 1986. Thus, the Board finds insufficient evidence to show that his decision not to provide RCSBP coverage for the applicant in 1986 was the result of a mental impairment.

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5. In the opinion of the Board, the applicant’s own admission that she and the FSM entered into QDRO in regard to other retirement benefits in 1994, only further supports the conclusion that the FSM was capable of participating in this process as late as 1994. Further, the Board believes that had it been his intent to voluntarily provide the applicant an RCSBP annuity he would have agreed to this in the 1994 QDRO. Thus, the Board does not find the 24 June 2002 court order is a binding QDRO in regard to RCSBP annuities, and as a result it finds no basis for granting the requested relief.

6. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

7. 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 __ ___bje __ __lb_____ DENY APPLICATION




         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2002081929
SUFFIX
RECON	1999/10/21
DATE BOARDED	2003/04/08
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	N/A
REVIEW AUTHORITY	N/A
ISSUES 1. 346	137.0000
2.
3.
4.
5.
6.