IN THE CASE OF:	  

		BOARD DATE:	       15 October 2008

		DOCKET NUMBER:  AR20080007938 


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, who is the former spouse of the deceased former service member (FSM), requests, that the FSM's records be corrected to show that the FSM elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) and to elect former spouse coverage.

2.  The applicant states that the RCSBP paperwork, completed at the time of the FSM's retirement, cannot be located and needs to be reconstructed.

3.  The applicant provides copies of the FSM's separation orders, Report of Separation and Record of Service (NGB 22), Certificate of Release or Discharge from Active Duty (DD Form 214), Washington State Certificate of Death, Marriage Certificate, Divorce Decree, and Notification of Eligibility for Retirement Pay at Age 60 (20-year letter).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 20 March 1972, the FSM was appointed a warrant officer, Aviation, United States Army Reserve, and was concurrently called to active duty.

3.  On 5 September 1975, the FSM was married to the applicant.

4.  On 6 April 1990, the FSM entered the Washington Army National Guard.

5.  On 5 March 1998, in a Decree of Dissolution, Superior Court of Washington State, Pierce County, the marriage between the FSM and the applicant was dissolved.  This decree provided, in part, that the applicant would receive 
50 percent of the FSM's gross retirement pay and would be designated as the irrevocable RCSBP beneficiary.  

6.  Records show that the FSM was born on 12 July 1948.

7.  The FSM was notified of his eligibility for retirement pay at age 60 in a letter from the Deputy Chief of Staff for Personnel, Military Department, State of Washington, dated 13 March 1998.  The letter indicates that a Survivor Benefit Plan Election Certificate (DD Form 1883) was attached for his use in making an RCSBP election.

8.  Orders 086-05, State of Washington, dated 27 March 1998, separated the FSM from the Washington Army National Guard and transferred him to the United States Army Reserve Control Group (Retired Reserve), effective 1 April 1998.  He had attained the rank of chief warrant officer four, pay grade W-4, and had completed 25 years, 7 months, and 2 days of creditable service.  He was 
49 years, 8 months, and 19 days of age at the time.

9.  The FSM's Certificate of Death shows that he died on 15 February 2005 at 
56 years of age.  The certificate further shows that he was divorced and did not list a surviving spouse.

10.  Records, Defense Finance and Accounting Service, show that the FSM was not old enough to receive retired pay and that there was no DD Form 1883 on file showing that he had made an RCSBP election.  

11.  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.

12.  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 the member dies before reaching age 60, premiums are deducted from the annuity.

13.  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.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members, including Reservists. 

14.  Title 10, U. S. Code, section 1448(b) (3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person, incident to a proceeding of divorce, to elect to provide an annuity to a former spouse if required by court order to do so.  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.  If that person fails or refuses to make such an election, section 1450(f) (3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made.  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.

15.  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 that would require SBP to be established on the former spouse’s behalf provided the member agreed to provide coverage.

16.  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.







DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the FSM completed a DD Form 1883 making an RCSBP election for former spouse coverage is not supported by any available evidence.  However, when the FSM and the applicant were divorced on 13 March 1998, the divorce decree designated the applicant as the irrevocable beneficiary for the FSM's RCSBP.  As such, the applicant was authorized to request a deemed election within one year of the court order. 

2.  The FSM had one year from the date of divorce to elect RCSBP for former spouse coverage.  He failed to do so, and the applicant failed to request a deemed election of the RCSBP within one year of the divorce as required by law.

3.  In view of the above, it would be equitable to correct the FSM’s records to show that the applicant made a request for a deemed election of the RCSBP within the proper time frame and that she be paid the SBP annuity.

BOARD VOTE:

____X___  ___X____  ____X__  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 showing that the applicant made a request for a deemed election of the RCSBP on 13 March 1998, the date of her divorce; that her request was received and processed by the appropriate office in a timely manner; and that she be paid the SBP annuity for which she is now eligible as a result of this correction.







      _______ _   _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)                                         AR20080007938



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ABCMR Record of Proceedings (cont)                                         AR20080007938



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