RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 March 2008
	DOCKET NUMBER:  AR20070012861 


	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

Mrs. Nancy L. Amos

Analyst


The following members, a quorum, were present:


Ms. Shirley L. Powell

Chairperson

Ms. Yolanda Maldonado

Member

Mr. Edward E. Montgomery

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 father, a former service member (FSM), be corrected to show he changed his Reserve Component Survivor Benefit Plan (RCSBP) coverage to former spouse coverage.

2.  The applicant states that the FSM continued to pay the cost of the SBP until he died.  He elected in his divorce to give her mother money from his military pension.  She is sure that at the time of his retirement he was only asked if he was married.  Since he said, “no,” he was not asked about the SBP.

3.  The applicant provides her certificate of live birth, the FSM’s death certificate and his supplementary certificate of cause of death; his Retiree Account Statement, effective date 10 April 2006; his Summary of Retired Pay Account; and her parents’ divorce documents.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 21 November 1942.  After having had prior enlisted service, he accepted a commission in the Army National Guard on 25 June 1967.

2.  On 12 March 1985, the FSM elected to participate in the RCSBP for spouse only coverage.

3.  On 8 March 2000, the FSM divorced.  The divorce papers state in part, “I have a pension from the National Guard, 20 years, will receive at age 60, I want Responent (sic) to get 50 % Amount unknown at this time.”  The SBP is not mentioned.

4.  The FSM turned age 60 on 21 November 2002.  He died on 24 March 2007.  His death certificate shows his marital status as divorced.  The Defense Finance and Accounting Service (DFAS) verified that he continued to pay SBP premiums until he died and that no one is currently receiving the SBP annuity.

5.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  

6.  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.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member's retired pay.  

7.  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.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.  It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center.  

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

9.  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.

10.  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.

11.  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 had elected to participate in the RCSBP for spouse coverage in 1985.  When he divorced in March 2002, the divorce decree did not award the SBP to the applicant’s mother.  The applicant’s mother could not have made a request for a deemed election of the SBP, but the FSM could have made a written request to change his spouse coverage to former spouse coverage.  His request had to have been made within one year of the date of the divorce.

2.  However, the FSM did continue to pay for the SBP until he died, an indication of his intention to provide SBP coverage for his former spouse.  It appears the FSM did not remarry, and DFAS has verified that no one is currently receiving the annuity.

3.  It appears that it would be equitable to correct the FSM’s records to show he requested that his RCSBP coverage be changed to former spouse coverage in a timely manner and that the applicant’s mother be paid the SBP annuity retroactive to the date of the FSM’s death.

BOARD VOTE:

__slp___  __ym____  __eem___  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 a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

     a. showing he made a written request to change his SBP coverage to former spouse coverage on 1 April 2000 and that it was received and processed by the appropriate office in a timely manner; and

     b.  paying to the applicant’s mother the SBP annuity retroactive to the date of the FSM’s death.




__Shirley L. Powell___
          CHAIRPERSON



INDEX

CASE ID
AR20070012861
SUFFIX

RECON

DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.
137.04
2.

3.

4.

5.

6.