RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 July 2007
	DOCKET NUMBER:  AR20060015148 


	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 requests, in effect, that she be determined to be entitled to an annuity based upon the Reserve Component Survivor Benefit Plan (RCSBP) election of her deceased former spouse, a former service member (FSM).

2.  The applicant states that the FSM worked hard for his retirement.  He traveled from Monticello, Arkansas to Little Rock, Arkansas to serve in the Air Force Reserve.  Later, he joined the Army Reserve (sic), served in Operation Desert Shield/Desert Storm, and traveled to other countries for the Reserves.  The applicant contends that it is unjust to withhold those [survivor] benefits because the FSM served for 25 years.  

3.  The applicant provides a copy of the FSM’s death certificate; the FSM’s and the applicant’s marriage license; and the FSM’s Army National Guard Current Annual Statement and Army National Guard Retirement Points Statement, prepared on 25 January 2005.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

Counsel states, in effect, that the applicant’s request should be granted based on the FSM’s long and faithful service, which included deployment and service in the Gulf War Theater of Operations.  Counsel supports the applicant’s request and urges the Board to grant the benefits as a matter of fairness and due to circumstances beyond both the applicant’s and FSM’s control.  

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 18 May 1951.  He married the applicant, B______, on 23 December 1971.  After having had prior service in the United States Air Force and the United States Air Force Reserve, the FSM enlisted in the Army National Guard on 6 April 1978.  

2.  He and the applicant, B______, were divorced on an unknown date.  The divorce decree is not available.  

3.  The FSM remarried on 25 November 1983 and either divorced his second spouse on an unknown date or she died.  

4.  On 8 May 1995, the FSM received his notification of eligibility for retired pay at age 60 (20-Year Letter).  On 9 July 1995, he completed a Survivor Benefit Plan Election Certificate (DD Form 1883) and elected children only coverage, full base amount, option C.  He indicated that he was not married and had a dependent daughter born on 1 January 1986.  The FSM signed a statement on 9 July 1995 acknowledging that he received information on the Uniformed Survivor Benefit Plan elections available to him and that he was aware the election was, in general, permanent and irrevocable.  

5.  The FSM was discharged from the Army National Guard on 5 October 1995 and was assigned to the Retired Reserve.  At that time, he held the rank of sergeant and had completed 23 years and 6 months total service for pay purposes.  

6.  On 14 December 2004, the FSM married his third spouse, D____.  

7.  The FSM died on 4 January 2005 at the age of 53.  The death certificate shows he was married to his third spouse, D____, at the time of his death.  

8.  A Transaction History in the U.S. Army Human Resources Command, 
St. Louis, Missouri database indicated the FSM’s third spouse and widow, D____, applied to receive the SBP annuity in June 2005.  The database entry indicated her request was denied because she was not married to the FSM for one year and she was not listed on his DD Form 1883.

9.  The FSM’s widow, D____, applied to the ABCMR in March 2006 to request entitlement to the SBP annuity.  Her request was denied by the ABCMR in the Record of Proceedings, Docket Number AR20060004727, dated 3 October 2006.

10.  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.  

11.  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.

12.  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.  

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

14.  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.

15.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA 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.

16.  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.  Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within one year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The FSM and the applicant were married in December 1971 and divorced on an unknown date.  However, as the FSM remarried on 25 November 1983, the applicant and FSM’s divorce obviously occurred before that date.  Since Congress did not amend the SBP statute until 1986 to authorize divorce courts to order SBP coverage, the applicant could not have been awarded the SBP by the court.  The FSM would have had to voluntarily provide her the SBP.

2.  The evidence of record shows the FSM received his 20-Year Letter, dated 8 May 1995.  He was not married to the applicant at that time and elected to enroll in the RCSBP for children coverage, full base amount, option C.  

3.  The FSM remarried on 25 November 1983 and again on 14 December 2004.  At the time of his death, he was married to D_____.

4.  Based on the FSM’s election of children only coverage in 1995, it appears it was his intention not to provide SBP coverage for the applicant, his former spouse.  Therefore, there is no basis to grant the applicant’s request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

______  ______  ____  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.




_______
          CHAIRPERSON




INDEX

CASE ID
AR20060015148
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070710
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
137.0000
2.

3.

4.

5.

6.