IN THE CASE OF:	  

	BOARD DATE:	  17 July 2008

	DOCKET NUMBER:  AR20080005976 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the records of her former spouse, a deceased former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.

2.  The applicant does not provide an explanation. 

3.  The applicant provides the FSM’s death certificate and a copy of a Qualified Domestic Relations Order filed on 20 May 1991.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 1 July 1933.  He was commissioned a Reserve officer in the U.S. Army Reserve (USAR) on 26 August 1955.  He married the applicant on 28 October 1961.

2.  On 27 January 1984, the FSM received his notification of eligibility for retired pay at age 60 (his 20-year letter).  The FSM’s DD Form 1883, dated 
12 September 1984, shows he enrolled in the Reserve Component SBP (RCSBP) for spouse and children coverage, full base amount, Option C (immediate coverage).  

3.  On 3 August 1987, the FSM was released from the USAR Control Group (Reinforcement) and assigned to the USAR Control Group (Retired).

4.  The FSM and the applicant divorced on 8 August 1988.  
5.  The applicant provided a Qualified Domestic Relations Order filed on 20 May 1991, which states, in pertinent part, in the event of the FSM’s death she would be entitled to the “surviving spouse benefits.” 

6.  On 1 July 1993, the FSM retired in the rank of colonel and was placed on the Retired List.  

7.  The FSM’s DA Form 4240 (Data for Payment of Retired Army Personnel), dated 5 August 1993, shows he did not complete item 15 (Check one of the following to indicate the type of coverage you desire) in Part V (Survivor Benefit Plan Election) on this form.  On 8 August 1993, the FSM declined to elect coverage under the Supplemental Survivor Benefit Plan (SSBP).  

8.  On 25 February 2008, the FSM died.  His death certificate shows he was divorced.

9.  Records at the Defense Finance and Accounting Service show the FSM did not pay any SBP premiums.

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.  Once a member elects either options B or C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP, and RCSBP coverage automatically rolls into SBP coverage.

12.  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.  

13.  Public Law 98-94, enacted 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 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.  Evidence of record shows the FSM elected SBP for spouse and children coverage in 1984.  SBP elections are made by category, not by name.  As long as the applicant was the FSM’s wife, she was the SBP beneficiary.  Once they divorced she was no longer a beneficiary.  

2.  It appears the FSM might have thought he was electing to decline the SBP in 1993 when he failed to complete Part V on his DA Form 4240 and when he declined to elect coverage under the SSBP.  There was no need from him to make any new election, his RCSBP election rolled over into the SBP.  

3.  However, there is also no evidence to show that the FSM requested that his SBP coverage be changed to former spouse coverage or that the applicant made a request for a deemed election within the statutory one-year time limit.  The FSM did not pay any SBP premiums, indicating it was his intent not to comply with the Qualified Domestics Relation Order.  Regrettably, there is no basis for granting the applicant’s request.  





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  ___xx___  ____xx__  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.




       _    _xxxx__   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080005976





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ABCMR Record of Proceedings (cont)                                         AR20080005976



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