RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 July 2007
	DOCKET NUMBER:  AR20060013141 


	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.  



	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, the former spouse of a deceased former service member (FSM), requests, in effect, that the Reserve Component Survivor Benefit Plan (RCSBP) election made by the FSM be changed from Spouse Only coverage to Former Spouse coverage.

2.  The applicant essentially states that although the divorce between the FSM and her was finalized on 18 February 2004, they had resumed their relationship back in September 2003.  She also states, in effect, that in November 2004, 9 months after their divorce, both she and the FSM went to Milford, Massachusetts to file his retirement papers as well as the DD Form 1883 (Survivor Benefit Plan Election Certificate).  She continues by stating that as the FSM named her his RCSBP beneficiary after their divorce, it was the FSM’s intent to provide her with annuity payments under the RCSBP.  She further states, in effect, that she and the FSM still own property together in the State of Maine, and that their property taxes are overdue.    

3.  The applicant provides the following in support of this application:

	a.  a self-authored letter, dated 15 July 2006;

	b.  a DD Form 1883 signed by both the FSM and the applicant;

	c.  a DD Form 2656-7 (Verification for Survivor Annuity), dated 31 May 2006, which was signed by the applicant;

	d.  a copy of the FSM’s death certificate;

	e.  a copy of the divorce proceedings between the FSM and the applicant, with a copy of their marriage certificate; and

	f.  the FSM’s National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) and a 20-Year letter: 

CONSIDERATION OF EVIDENCE:

1.  The applicant provided a marriage certificate, which shows that she and the FSM were married on 29 March 1995.  

2.  On 30 August 2002, the FSM was sent his 20-Year Letter (Notification of Eligibility for Retired Pay at Age 60).  
3.  The applicant provided a DD Form 1883 which she contends was completed by her and the FSM in November 2004, after their divorce.  However, all of the handwritten dates on this document appear to have been completed in a “Day-Month-Year” format, and that it was signed by the FSM and the applicant on 
4 November 2002.  This would appear to be corroborated by the fact that this document was uploaded into the FSM’s official military personnel file on 
14 January 2003, and the fact that the FSM was required to respond to his 
20-Year Letter, dated 30 August 2002, within 90 days of receipt to advise the Army of the name of his spouse, or to change the automatic election of Option C (Immediate Coverage – Spouse Only) as provided for in the 2001 National Defense Authorization Act.  This document shows that the FSM named the applicant as his spouse, not former spouse, at the time he completed this document.  

4.  The FSM was released from the Massachusetts Army National Guard on 
12 December 2003 and transferred to the Retired Reserve.

5.  The applicant also provided a copy of the divorce proceedings, which essentially shows that they were divorced on or about 17 February 2004.  Although the divorce paperwork provided by the applicant essentially awarded her half of the FSM’s military pension from the date of their marriage to the date of the divorce filing and stated that the applicant’s counsel would prepare the necessary Qualified Domestic Relations Order (QDRO), this paperwork is silent concerning the FSM’s requirement to obtain or maintain RCSBP coverage for the applicant.  

6.  The applicant provided a photo copy of the FSM’s death certificate, which shows that he died on 9 March 2006.  It should be noted that the FSM was not eligible to receive retired pay until after 20 August 2014, when he would have reached 60 years of age.

7.  The applicant essentially stated that it was the FSM’s intent to provide her with annuity payments under the RCSBP; however, as he was not eligible to receive retired pay at the time of his death, there is no record of RCSBP premiums being paid by the FSM after his divorce from the applicant, which could confirm his intent to continue providing RCSBP coverage for her.

8.  The applicant also stated that she and the FSM still owned property together in the State of Maine, and that their property taxes are overdue.  However, the divorce paperwork provided by the applicant clearly stated that the applicant was awarded their residence in Saco, Maine, free and clear of any interest of the FSM, and that she was solely responsible for the payment of the mortgage, property taxes, insurance, and all other obligations related to this property.

9.  There is no evidence that the FSM converted his RCSBP election from Spouse Only coverage to Former Spouse coverage within one year of their divorce.

10.  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.  At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else have waited until he/she applied for retired pay and elected to participate in the standard SBP.  The 2001 National Defense Authorization Act changed the RCSBP enrollment procedure.  Soldiers receiving a 20-Year Letter after 31 December 2000 are considered automatically enrolled in the RCSBP under Option C, Spouse Only coverage.  Soldiers are required to respond within 90 days of receipt of their 20-Year Letter to advise the Army of the name of their spouse, or to change the automatic election.  Any change to the automatic election (Option C) required written correspondence to that effect that is signed by both the Soldier and the spouse.  RCSBP elections are by category, not by name.

11.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the Uniformed Services Former Spouses’ Protection Act relating to the SBP.  It permits a person to elect to provide an annuity to a former spouse.  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.  The member must disclose whether the election is being made pursuant to the requirements of a court order or pursuant to a written agreement previously entered into voluntarily by the member as part of a proceeding of divorce.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, the former spouse of a deceased FSM, in effect, contends that the RCSBP election made by the FSM should be changed from Spouse Only coverage to Former Spouse coverage.

2.  Although the applicant contends that the DD Form 1883 on file in the FSM’s OMPF was completed by her and the FSM in November 2004, evidence of record shows that this document was apparently executed on 4 November 2002, in response to correspondence which accompanied his 20-Year Letter that required him to advise the Army of the name of his spouse, or to change the automatic election within 90 days of receipt of his 30 August 2002 20-Year Letter.

3.  The applicant’s contention that it was the FSM’s intent to provide her with annuity payments under the RCSBP was noted.  However, as he was not eligible to receive retired pay at the time of his death, there is no record of RCSBP premiums being paid by the FSM after his divorce from the applicant, which could confirm his intent to continue providing SBP coverage for her.

4.  The fact that the applicant also stated that she and the FSM still owned property together in the State of Maine, and that their property taxes were overdue was also noted.  However, the divorce paperwork provided by the applicant clearly states that the applicant was awarded their residence in Saco, Maine free and clear of any interest of the FSM, and that she was solely responsible for the payment of the mortgage, property taxes, insurance, and all other obligations related to this property.  Therefore, it is unclear how the applicant can still claim that she and the FSM still owned property together in the State of Maine.

5.  Although the FSM designated the applicant to receive RCSBP annuity payments as his spouse prior to his retirement, they divorced on or about 
17 February 2004, after the FSM’s retirement on 12 December 2003.  Therefore, the FSM only had 1 year from the date of their divorce to make a written election designating the applicant – his former spouse -- to receive his RCSBP annuity.  The FSM failed to designate the applicant to receive Former Spouse coverage under the RCSBP within the required 1-year period after his divorce.  Designation of an RCSBP beneficiary is by category, not by name.  Therefore, due to the FSM’s failure to elect former spouse category, the beneficiary category remained spouse beneficiary.
6.  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.

7.  Regrettably, in view of the foregoing, there is insufficient basis for granting relief to the applicant in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___JS___  __DH ___  __LD ___  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.





_______John Slone__________
          CHAIRPERSON




INDEX

CASE ID
AR20060013141
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070717
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
137.0000.0000
2.

3.

4.

5.

6.