RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  16 August 2007
	DOCKET NUMBER:  AR20070002698 


	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.  


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst


The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. William Blakely

Member

Mr. Donald L. Lewy

Member

	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 the records of her deceased former spouse, a former service member (FSM), be corrected to show that he changed his Reserve Component Survivor Benefit Plan (RCSBP) election to former spouse coverage.

2.  The applicant states that the denial of survivor benefits was improper and not in accordance with the provisions of applicable law and regulations.  The applicant further cites Department of Defense Instructions (DODI) 1332.42 (Survivor Annuity Program Administration) and states that given the underlying factual circumstances and elections or lack of change made by a retired service member, the denial was improper.

3.  The applicant provides the following in support of her application:
	a.  Attorney Letter
	b.  Divorce Decree
	c.  Army Reserve Personnel Command memorandum dated 27 December 2006
	d.  State of Connecticut Letter dated 8 November 2006
	e.  DD Form 2656-7 (Verification of Survivor Annuity)
	f.  Certificate of Death
	g.  Certificate of Marriage
	h.  Applicant's Certificate of Birth
	i.  Applicant's Son's Certificate of Birth
	j.  Verification of Applicant's Son School Enrollment
	j.  DD Form 1883 (Survivor Benefit Plan Election Certificate)
	k.  Notification of Eligibility for Retired Pay at Age 60
	l.  Army National Guard Current Annual Statement
	m.  National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
	n.  DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
	o.  FSM's Promotion Orders
	p.  FSM's DA Form 2-1 (Personnel Qualification Record)
	q.  FSM's Retirement Order

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests retroactive award of SBP benefits for the applicant based on the death of her deceased former husband.

2.  Counsel states that in the absence of a change or an election after the applicant and the FSM were divorced, the applicant has a legally enforceable right to survivor benefits.  Counsel further states that it was the FSM's intention to amend his election. 

3.  Counsel provides no further documentation in support of the application.

CONSIDERATION OF EVIDENCE:

1.  Records show that the FSM was born on 7 December 1951 and that he served in the Army National Guard (ANG) during the period 25 June 1969 through 25 June 1991, completing a total of 22 years, 5 months, and 10 days of qualifying service for non-regular retirement.  Records further show that the applicant and the FSM were married on 22 September 1973.

2.  On 7 August 1989, the FSM was issued his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).

3.  On 14 October 1989, the FSM completed a DD Form 1883 (Survivor Benefit Plan Election Certificate).  He elected to participate in the RCSBP for spouse and children coverage, full base amount, Option C.

4.  The FSM and applicant were divorced on 3 April 1992.  The divorce decree states in pertinent part "…Retirement Benefits:  the husband and wife shall retain their individual pension rights."  

5.  On 17 February 2001, the FSM died at the age of 51.

6.  On 27 December 2006, the applicant was notified by officials from the US Human Resources Command Saint Louis, Missouri, that she was not eligible for an annuity because the FSM did not elect former spouse coverage after the divorce.

7.  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.  Elections are made by category, not by name.
8.  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.

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

10.  Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within one year of the court order requiring SBP to be established on the former spouse’s behalf provided the member agreed to provide coverage.

11.  Public Law 99-145, dated 8 November 1985 (but effective 1 March 1986), permitted retirees to elect SBP coverage for a former spouse under spouse coverage provisions vice insurable interest provisions.

12.  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.

13.  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 applicant's contention that she is entitled to receive SBP benefits based on the death of her former husband, a FSM, was carefully considered.  However, there is insufficient evidence to support this claim

2.  SBP elections are made by category, not by name.  Once the applicant and the FSM were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary.

3.  The FSM's SBP election of spouse coverage was in effect on the day he died 
At the time the FSM and the applicant divorced, the state court decided that "…each shall retain their individual pension rights."  A change in SBP beneficiary would have had to have been a strictly voluntary action on the part of the FSM, which is a change the evidence of record shows he did not make.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __wb____  __dll___  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.




							William D. Powers
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070002698
SUFFIX

RECON

DATE BOARDED
20070816
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1. 346
137.0100.0000
2.

3.

4.

5.

6.