IN THE CASE OF:	  

		BOARD DATE:	        21 August 2008

		DOCKET NUMBER:  AR20080010193 


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 immediate entitlement to Reserve Component Survivor Benefit Plan (RCSBP) benefits based on the death of her former husband, a former service member (FSM).

2.  The applicant states that her former husband executed a DD Form 1883 (Survivor Benefit Plan Election Certificate), naming her (the applicant) as the sole beneficiary to receive a full and immediate annuity upon death.  Based on this execution, the applicant waived her and her children’s interest in the FSM’s retirement plans in the Judgment for Dissolution of Marriage, dated 28 May 1997, as long as he was alive.  The FSM died on 19 June 2002.  At no time prior to his death did he amend his DD Form 1883.  After his death, the applicant submitted a claim for a full and immediate annuity; however, her claim was denied on 8 April 2007.  Based on this denial, no one will receive the FSM’s retirement benefits.  This was not his intention.  His intent was to provide for his family and for the applicant to have access to this annuity to assist with raising two minor children and defray the cost of their college education.  The FSM died without a will; nevertheless, it was his intent that the applicant would be the beneficiary.

3.  The applicant provides the following additional documentary evidence in support of her application

	a.  Judgment of Dissolution of Marriage and Marital Settlement Agreement, dated 28 May 1997.  

	b.  The FSM's Death Certificate, dated 19 January 2002.
	c.  Marriage License, dated 31 December 1990.

	d.  Birth Certificates of the applicant’s and the FSM’s children.

	e.  Self-authored letter, dated 29 April 2008.

	f.  Form W-4P (Withholding Certificate for Pension or Annuity Payments), dated 16 January 2007.

	g.  DD Form 2788 (Child Annuitant’s School Certification) and DD Form
2788-1 (Child Annuitant’s School Certification), dated 7 June 2001. 

	h.  Direct Deposit Sign-Up Form, dated 16 January 2007.  

	i.  Self-authored letter, dated 1 April 2008.  

	j.  DD Form 1883, dated 12 November 1996.  

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.  The FSM’s records show he born on 28 January 1948 and enlisted in the Regular Army for a period of 2 years on 23 October 1967.  He subsequently applied for appointment as a warrant officer in the U.S. Army Reserve (USAR) and was appointed as warrant officer one (WO1) for an indefinite term on 21 October 1968.  

3.  On 31 December 1990, the applicant and the FSM were married. 



4.  In 1996, the US Army Reserve Personnel Center issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified the FSM that he had completed the required years of service and would be eligible for retired pay upon application at age 60.  

5.  On 12 November 1996, the applicant completed a DD Form 1883, electing “spouse only” coverage, full amount, option C, under the RCSBP.  He and his spouse (the applicant) authenticated this form by placing their signatures and dates in the appropriate section.

6.  On 28 May 1997, the FSM and applicant filed a petition for Dissolution of Marriage.  At the time the applicant and FSM had lived separate and apart for a continuous period in excess of two years.  

7.  The Marital Settlement Agreement, dated 28 May 1997, states that the FSM “has a certain pension plan by virtue of his employment in the USAR.  The FSM shall be the sole owner of said pension plan and [Applicant] hereby waives any interest she may have therein.”  The settlement agreement did not address the SBP.

8.  On 18 June 1999, the FSM married his second wife, Cecilia.

9.  On 19 January 2002, the FSM died at the age of 52.  His Certificate of Death shows he was married to Cecilia at the time of death.

10.  In her self-authored letter, dated 1 April 2008, the applicant states that at the time of her former husband’s death, no Casualty Assistance Officer (CAO) was appointed for his children or her.  As a result, she did not understand what actions she needed to take to request the FSM’s benefits be disbursed to her.  She further adds that she assumed the benefits would automatically be disbursed to her pursuant to his DD Form 1883, upon reaching age 60, but this did not happen.  She concludes that this letter serves as a request to correct the FSM’s records to show she is entitled to full benefits under the SBP.  

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.  At the time, a member must have 
made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applied for retired pay and elected to participate in the standard SBP.

12.  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.

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

14.  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 requiring SBP to be established on the former spouse’s behalf, provided the member agreed to provide coverage.

15.  Public Law 99-145, dated 8 November 1985 (but effective 1 March 1986), permitted retirees to elect SBP coverage for a former spouse under spouse coverage provisions vice insurable interest provisions.

16.  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.

17.  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 applicant's contention that she is entitled to receive RCSBP benefits based on the death of her husband, a FSM, was carefully considered; however, there is insufficient evidence to support her claim.

2.  The evidence of record shows that the FSM, while still married to the applicant, elected SBP spouse coverage at the full amount, prior to his retirement.  He and the applicant were subsequently divorced.  Their divorce decree did not obligate the FSM to change SBP coverage from spouse coverage to former spouse coverage.

3.  SBP elections are made by category, not by name.  Once the applicant and the FSM were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary.  A change in SBP beneficiary would have had to have been a strictly voluntary action on the part of the FSM, which is a change the evidence of record shows he did not make.  Furthermore, the FSM was remarried after his divorce from the applicant.  Therefore, his spouse at the time of death would be the beneficiary of the SBP annuity.  

4.  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

__xxx___  __xxx___  __xxx___  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.


															XXX
      ______________________
               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)                                         AR20080010193



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ABCMR Record of Proceedings (cont)                                         AR20080010193



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