IN THE CASE OF:	  

		BOARD DATE:	  30 September 2008

		DOCKET NUMBER:  AR20080009467 


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 his record be corrected to show his Reserve Component Survivor Benefit Plan (RCSBP) former spouse coverage is based on a reduced based amount of $300.00, as opposed to being based on the full amount of retired pay.  

2.  The applicant states, in effect, that when he completed his Data for Payment of Retired Personnel (DD Form 2656), he elected RCSBP coverage for his former spouse at the reduced base amount of $300.00, in compliance with his divorce court order.  He also states that prior to making this election, he received a full explanation on his choice of options and that he consulted with The Adjutant General (TAG) of the Ohio Army National Guard (OHARNG).  He believes that provisions should be made to allow a retiree to split an election between the former and current spouse and indicates that after serving more than 22 years in the Army in the defense of his country, he should be allowed to pass on his effects to whomever he chooses upon his death.

3.  The applicant provides the following documents in support of his request:  Self-Authored Statement; DD Form 2656, dated 27 July 2007; Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage (DD Form 2656-1); Defense Finance and Accounting (DFAS) Summary of Retired Pay Account; Retiree Account Statements, dated 14 December 2007, and 16/17 January 2008; and Divorce Military Qualifying Court Order, filed 24 May 2000.


CONSIDERATION OF EVIDENCE:

1. The applicant's military records show he was born on 11 December 1947.  On 28 November 1966, he enlisted in and entered the ARNG.  He continued to serve in an enlisted status through 25 July 1970.

2.  On 26 July 1970, the applicant was appointed a Reserve commissioned officer in the rank of second lieutenant (2LT).  He was promoted to major (MAJ) on 3 September 1987. 

3.  The applicant and his former spouse were married on 8 June 1968.

4.  The applicant’s record includes a Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter), dated 12 March 1987.  

5.  On 4 May 1987, the applicant completed a DD Form 1883 and selected "Spouse and Children" as the type of RCSBP coverage desired.  He also elected to provide an annuity at the “Full” amount under Option C (Immediate Coverage), which indicated he wanted to provide his beneficiaries an immediate annuity beginning on the day after the date of his death whether before or after age 60.

6.  The DD Form 1883 includes the following statement just below his elections made:  "IMPORTANT:  The decision you make with respect to participation in this Survivor Benefit Plan is a permanent irrevocable decision.  Please consider your decision and its effect very carefully.”  Both the applicant and his former spouse authenticated this document with their signatures on 4 May 1987.

7.  On 26 May 1992, after completing over 21 years of qualifying military service for Reserve retirement at age 60, the applicant was honorably retired from the OHARNG and transferred to the United States Army Reserve (USAR) Control Group (Reinforcement).

8.  On an unknown date, the applicant and his former spouse were divorced.

9.  On 16 December 2000, the applicant remarried.

10.  The applicant provides a DD Form 2656, dated 27 July 2007.  The entries on this document were typed and shows he changed his original election of RCSBP coverage from “Spouse and Children” at the full amount to “Former Spouse” at the reduced base amount of $300.00.  Section XI (SBP) Spouse Concurrence does not contain the signature of the former spouse.  


11.  The applicant also provides a DD Form 2656-1 which shows that based on the divorce between him and his first wife, he changed his RCSBP election from “Spouse and Children” to “Former Spouse” coverage.  Item 12 (Remarks) of this document contains a handwritten entry using a different pen and unlike any other entry on this form.  The applicant and his witness authenticated this document on a 27 July 2007 and the former spouse and her witness authenticated this document on 29 January 2008, more than 5 months later.

12.  On 14 December 2007, a DFAS, Summary of Retired Pay Account statement was prepared.  This document shows the applicant elected RCSBP on 27 July 2007 for “Spouse Only with No Supplemental” coverage at the reduced base amount of $300.00.  It also shows that the charges for this coverage would commence on 1 January 2008, at a cost of $8.04.

13.  The applicant provides a Retiree Account Statement, dated 14 December 2007, for his pay that became due on 1 February 2008.  It shows that an RCSBP premium cost was deducted from his retired pay for “spouse only” coverage in the amount of $8.04.

14.  The applicant provides two additional Retiree Account Statements, dated 16 and 17 January 2008, also for his pay that became due on 1 February 2008.  The statement, dated 16 January 2008, contains a statement that shows “NO SBP ELECTION IS REFLECTED ON YOUR ACCOUNT”; however, the $8.04 premium cost was deducted from his pay.  The statement dated 17 January 2008, shows that an RCSBP premium cost was deducted from his retired pay for “former spouse” coverage in the amount of $84.64.

15.  The applicant also provides a Military Qualifying Court Order filed on 24 May 2000.  It shows the applicant agreed to elect his former spouse the irrevocable beneficiary of his SBP.

16.  During the processing of this case, a staff member of the Board contacted the Defense Finance and Accounting Service (DFAS) to determine the applicant's SBP coverage/election.  On 17 September 2008, a DFAS official confirmed the former spouse submitted a deemed election on 30 May 2000, six days after the 24 May 2000 court order directing she receive the SBP benefits as the applicant's former spouse, which was accepted and approved by DFAS.

17.  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.


18.  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.  An election, once made, is irrevocable, except in certain circumstances as provided for by law.

19.  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.

20.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his RCSBP election should be changed from full coverage to the reduced base amount of $300.00 because he made a second informed decision to do so subsequent his divorce has been carefully considered.  However, by law, divorce courts may 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, and incident to a proceeding of divorce, the former spouse can request a former spouse SBP coverage election be deemed to have been made within one year of the date of a court order of divorce.  The law also stipulates that once made, an election for SBP coverage is irrevocable and cannot be changed, except in certain circumstances.

2.  The evidence of record confirms the Military Qualifying Court Order agreed to in the divorce decree of the applicant and his former spouse was silent regarding a change to the amount of the SBP benefit awarded to the former spouse.  As a result, given the record confirms the applicant initially elected full SBP coverage and absent special circumstances that would support an exception to the irrevocable election provisions of the law, the original SBP election made by the applicant and the properly filed deemed election by the former spouse remain valid and it would not be appropriate to honor the applicant's current request to reduce the amount upon which SBP coverage is based.  

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20080009467



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ABCMR Record of Proceedings (cont)                                         AR20080009467


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