IN THE CASE OF:
BOARD DATE: 28 September 2008
DOCKET NUMBER: AR20080006367
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 deceased spouse, a former service member (FSM), be corrected to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage.
2. The applicant states, in effect, when she and the FSM were divorced, the FSM intended for her to draw his pension. The divorce decree papers show that the FSM wanted her to draw RCSBP. She believes in her heart that the FSM wanted her to receive his RCSBP. They were married for 35 years, and the Army had a lot to do with their divorce. The FSM had served 23 1/2 years in the military when they both visited the U.S. Army Human Resources Command to sign some papers, which stated she could draw his pension. She states that today no one knows what she is talking about and she does not have a copy of the papers. She states that they were always friends and she believed the FSM was sick from the war in the Republic of Vietnam, but they never received anything for it.
3. The applicant provides a copy of a Divorce Decree, dated 6 March
2003, Certificate of Marriage, dated 23 October 2003, Certificate of Death, dated 7 May 2007, and a personal statement, dated 5 June 2008.
CONSIDERATION OF EVIDENCE:
1. The FSM enlisted in the Regular Army on 20 April 1967. He served in military occupational specialty (MOS) 64B (Heavy Vehicle Driver) in various assignments until he was released from active duty and transferred to U.S. Army Reserve (USAR) Control Group (Reinforcement), St. Louis, Missouri, on 17 April 1970. He had completed 3 years, 1 month, and 16 days of Total Active Service. His date of birth was 21 June 1945.
2. The FSM reenlisted into the Army National Guard on 2 April 1975 and served continuously until he was discharged and transferred to the USAR with assignment to the 825th Replacement Detachment, Marion, Illinois, on
27 October 1985. He had completed 16 years, 6 months, and 26 days of Total Service For Pay.
3. The FSM's notification of eligibility for retired pay at age 60 (known as a
20-year letter) is dated 16 June 1992.
4. On 23 June 1992, the FSM completed a DD Form 1883 (Survivor Benefit Plan Election Certificate). The FSM (married at the time) elected full coverage and elected Option C (elect that a beneficiary receives an annuity immediately upon their death if before age 60).
5. The FSM continued to serve with the 825th Replacement Detachment and 334th Medical Company until he was released from assignment and transferred to the Retired Reserve, effective 10 September 1992.
6. The divorce decree shows that the applicant was divorced from the FSM on
6 March 2003. The FSM was placed on the Retired List on 21 June 2005, at age 60.
7. A DD Form 2656 (Survivor Benefit Plan Election Change Certificate), undated, shows that the FSM was single, he designated his daughter as a beneficiary for his unpaid retired pay, and made no election for RCSBP coverage.
8. The FSM died on 6 May 2007 at age 61.
9. 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.
10. 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. Considering all the evidence, allegations, and information presented by the applicant through her statement, together with the evidence of record and applicable law and regulations, the evidence shows that the FSM was divorced, effective 6 March 2003, placed on the Retired List on 21 June 2005, and he made no election for RCSBP coverage.
2. Although, the applicant claims she believes the FSM wanted her to receive his pension, there is no signed election by the FSM to name her as his former spouse beneficiary. In addition, the divorce decree did not direct the FSM to provide the applicant RCSBP coverage. As such, no RCSBP coverage was provided.
3. In view of the foregoing, there is no basis for granting the applicant's request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__X_____ ___X____ ___X___ 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.
_______ _ X_______ ___
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) AR20080006367
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