RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 November 2007
	DOCKET NUMBER:  AR20070006097 


	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

Ms. Joyce A. Wright

Analyst


The following members, a quorum, were present:


Ms. Barbara J. Ellis

Chairperson

Mr. Jose A. Martinez 

Member

Mr. Chester A. Damian

Member

	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, reconsideration of her earlier request for correction of her deceased former spouse's records, a former service member (FSM), to show he changed his Reserve Component Survivor Benefit Plan (RCSBP) coverage to former spouse.

2.  The applicant states, in effect, that her case should be reconsidered due to the notarized statement signed by the FSM's widow.  

3.  The applicant provides a copy of a notarized statement from the FSM's widow, dated 17 April 2007.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20059914997 on July 19, 2006.

2.  The Board concluded, in the FSM's earlier case, that notwithstanding the staff Discussion and Conclusions in the Board Proceedings, dated July 19, 2006, that during their review the evidence present was sufficient to warrant a recommendation for relief.  The Board noted that a Court of competent authority mandated that the applicant be designated as the FSM’s RCSBP beneficiary.  Furthermore, the applicant provided a copy of the divorce decree to DFAS within 8 days of the effective date of the divorce.  Under those circumstances, she should have been advised by AR-PERSCOM (Army Personnel Command now known as the Army Human Resources Command) or her attorney of the necessity to submit a request for a deemed election.  The Board recommended that the FSM's records be corrected to show that the applicant made a written request for a deemed election of the FSM's SBP on 13 October 2000 and that her request was received and processed by the appropriate office in a timely manner.

3.  The proceedings were reviewed by the Deputy Assistant Secretary (Army Review Boards) (DASA).  The DASA declined to accept the Board's recommendation.  He concluded that granting relief in this case could unlawfully and unfairly deprive the legal beneficiary of her entitlement to benefits.
The applicant was informed that she may reapply to the Board to show:  (1) the widow has renounced payment of the annuity in perpetuity in favor of the applicant: (2) the widow did not become the lawful beneficiary under Federal law because the marriage occurred less than one year before the former service member's death and no child resulted from their union; or (3) a court with proper jurisdiction over the widow and the divorce has directed the Government to pay the annuity to the applicant rather than the widow.

4.  The evidence shows that the applicant reapplied to the ABMCR for reconsideration on 21 August 2006.  On 3 April 2007, the staff of the ABCMR reviewed her request and the additional evidence submitted.  The ABCMR determined that the evidence provided shows that the marriage between the FSM and his widow occurred less than one year before his death.  However, she did not provided evidence which conclusively showed that no child resulted from their union.  Her request for reconsideration was returned without action by the ABMCR.  She was informed to reapply by 19 July 2007.  

5.  The applicant's new argument, as stated in her request, is the same as her old argument.

6.  The applicant provided of a copy a notarized statement from the FSM's widow, dated 17 April 2007.  The widow indicated that she and the FSM were married on 24 November 2004 and he died on 25 June 2005 (7 months).  No child resulted from their marriage and they did not have any children together.

7.  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.  

8.  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.    

9.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members.  




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

11.  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.

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 argument and new evidence were considered by the Board.  

2.  The applicant provided a notarized statement from the FSM's widow, dated 17 April 2007 which indicated that she and the FSM were married on 24 November 2004 and he died on 25 June 2005 (7 months).  No child resulted from their marriage and they did not have any children together.

3.  Although there is no evidence to show the applicant made a written request for a deemed election within one year of the divorce, since the FSM’s widow will not be harmed, and in the interest of justice, fairness and equity, the applicant is entitled to an SBP annuity.   







BOARD VOTE:

__JAM___  __BJE__  __CD___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20050014997, dated 19 July 2006.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by

	a.  showing that the applicant made a written request for a deemed election of the FSM’s SBP on 13 October 2000; and

	b.  that the applicant’s request was received and processed by the appropriate office in a timely manner.




____   Barbara J. Ellis_____
          CHAIRPERSON




INDEX

CASE ID
AR20070006097
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071108
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19950121
DISCHARGE AUTHORITY
AR 140-10 . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
128.1800
2.

3.

4.

5.

6.