RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2007
	DOCKET NUMBER:  AR20060012822 


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


x
	The Board considered the following evidence: 

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that she be paid the Survivor Benefit Plan (SBP) annuity based on the enrollment of her deceased former husband, a former service member (FSM), in the SBP.

2.  The applicant states the FSM was married twice and that she was his last spouse.

3.  The applicant provides three different versions of the FSM’s DD Form 1883 (SBP Election Certificate) and the FSM’s death certificate.  

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 11 December 1942.  He enlisted in the New Mexico Army National Guard on 16 January 1961.  He married his first wife, M___ E___, on or about 12 June 1965.  

2.  The FSM's notification of eligibility to receive retired pay at age 60 (20-Year Letter) is dated 13 July 1981.  He completed a DD Form 1883 on 26 October 1981 and enrolled in the Reserve Component SBP (RCSBP) for spouse only coverage, full base amount, option C.  He indicated that he had dependent children.  

3.  The FSM divorced M___ E___ in 1982.  The divorce decree shows his first wife’s name as “E___” and shows they were married on “15 June 1965.”  The complete divorce decree is not available.  

4.  The FSM completed a DD Form 1883 on 9 January 1986 and enrolled in the RCSBP for children coverage only, full base amount, option C.  He indicated that he was not married and had dependent children.  

5.  The FSM married the applicant, F______, on 14 February 1990.  

6.  On 15 August 1990, the FSM completed a DD Form 1883 and he elected RCSBP for spouse and children coverage, full base amount, option C.  The applicant, F_____, is listed as his spouse under Section III (Family Information).  He completed another DD Form 1883 on 29 March 1993 and he elected RCSBP for spouse only coverage, full base amount, option C.  He listed the applicant, F______, as his spouse and indicated he had no dependent children.  

7.  The applicant, F______, divorced the FSM in October 1995.  The complete divorce decree is not available.  

8.  The FSM completed a DD Form 2656 (Data for Payment of Retired Personnel) on 15 August 2001.  He elected SBP for natural interest person, his daughter, J_______, full base amount without Supplemental SBP.  Section X (Remarks) on his DD Form 2656 shows the comments “INDIVIDUAL ELECTED SBP FOR SPOUSE IN 1981 AND HAS BEEN DIVORCED.  MEMBER NEVER CANCELED HIS SBP ELECTION AFTER HIS DIVORCE.  PLEASE SEE ATTACHED DIVORCE DECREE.  Per conversation with Mr. S_____ W_____ to stop SBP cost on date of divorce. “

9.  The FSM reached age 60 on 11 December 2002.

10.  The FSM died on 11 January 2006.  His death certificate shows his marital status as divorced.  

11.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members 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 for by law.  

12.  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.  

13.  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.

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

DISCUSSION AND CONCLUSIONS:

1.  The FSM received his 20-Year Letter on 13 July 1981.  He was then married to his first wife, M___ E___, and elected RCSBP coverage for spouse, full base amount, option C.  He divorced his first wife sometime in 1982.  At that time, his RCSBP coverage should have been suspended.  

2.  Any later RCSBP/SBP elections made by the FSM would have been invalid.  The only means by which he could have validly added (not deleted) a beneficiary would have been via an RCSBP/SBP Open Season.  However, there is no evidence he took advantage of any Open Seasons.

3.  The FSM married the applicant, F______, on 14 February 1990.  His original RCSBP election of spouse coverage should have been reinstated.  

4.  The applicant, F______, divorced the FSM around October 1995.  There is no evidence to show that either she or the FSM attempted to elect former spouse coverage within one year of their divorce, as required by the SBP statute.  The applicant did not provide a copy of her divorce decree; however, it can be determined from the portion available that all Army National Guard retirement benefits, which include RCSBP/SBP, were awarded by the court to the FSM.

5.  The FSM died on 11 January 2006.  The evidence of record shows he was not married to the applicant at the time of his death.  Since the applicant was no longer his spouse, and the FSM indicated when he completed his DD Form 2656 in August 2001 that he did not desire spouse or former spouse coverage, there is no basis for granting her the SBP annuity as either a spouse or former spouse beneficiary.  Finally, DFAS records show the FSM’s first spouse and now former spouse, M___ E___, was approved as former spouse beneficiary and is currently drawing the SBP annuity.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

x______x______x_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




x___________
          CHAIRPERSON




INDEX

CASE ID
AR20060012822
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
137.0000
2.

3.

4.

5.

6.