IN THE CASE OF:	  

		BOARD DATE:	        02 December 2008

		DOCKET NUMBER:  AR20080013072 


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 former spouse, a former service member (FSM), be corrected to show that he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for former spouse coverage and that she be entitled to all of the FSM's benefits and privileges.

2.  The applicant states that under the Uniformed Services Former Spouse Protection Act (USFSPA), an unmarried former spouse of a member who has performed 20 years of creditable service in determining eligibility to Retired Pay is eligible for Military Identification Card benefits and privileges to several categories of benefits.  She goes on to state that her former spouse died before making a Survivor Benefit Plan (SBP) election and that had he been allowed to participate, she is sure he would have provided her with immediate coverage under Option C, based on his eligibility pay and benefits at age 60.

3.  The applicant provides copies of the FSM's death certificate, a copy of their marriage license, a copy of their divorce decree, a copy of the FSM's 20-year letter, and a copy of the FSM's retirement points history.

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 was born on 1 June 1938.  He enlisted in the Texas Army National Guard (TXARNG) on 2 September 1954 and continued to serve until he enlisted in the U.S. Air Force (USAF) on 9 February 1956.  He was discharged from the USAF on 8 February 1960.  He again enlisted in the TXARNG on 6 June 1960 and continued to serve through a series of continuous reenlistments.  He married the applicant on 18 July 1963.  He was promoted to the pay grade of E-6 on 1 May 1976.

3.  On 14 October 1979, the FSM was notified that he was eligible to apply for the new SBP which was effective in September 1978.  The applicant's options were explained to him and he was provided the necessary form (DD Form 1883) and was advised to return it completed no later than November 1979.  There is no evidence in his official records to show that the applicant ever completed that form.

4.  On 19 February 1980, the applicant and the FSM were divorced in Kleberg County, Texas.  The Decree of Divorce makes no reference to the applicant's military service or his military retirement benefits.

5.  On 30 May 1980, the FSM was issued a 20-year letter and was provided an RCSBP information sheet explaining to him that he had 90 days in which to elect an option.  There is no evidence in the available records to show that he ever elected to participate in the RCSBP.

6.  On 1 February 1982, the FSM was honorably discharged from the TXARNG and was transferred to the U.S. Army Reserve (USAR) Control Group (Retired).  He had over 26 years of creditable service for Retired Pay purposes.

7.  On 17 May 1996, the FSM passed away at the age of 57 in Kleberg County, Texas.  His death certificate indicates that he was divorced at the time of his death.

8.  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 he dies 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 his 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 applies for retired pay and elect to participate in the standard SBP.  In other words, failure to elect an option resulted in the default election of option A.

9.  Public Law 97-252, the USFSPA, enacted 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 (Reserve members, too).

10.  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.

11.  Public Law 99-661, enacted 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.

12.  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 evidence of record clearly shows that the FSM was advised on at least two occasions prior to being placed on the Retired List of his eligibility to participate in the RCSBP and the options that were available to him under the plan.  However, there is no evidence to show that he ever made any elections to participate.

2.  At the time of the FSM's and the applicant's divorce, the USFSPA had not been enacted into law and the divorce degree provided by the applicant makes no mention of any provisions directing that the FSM provide SBP benefits to his former spouse (the applicant).

3.  Therefore, in the absence of evidence to show that he was directed by the court to provide his former spouse SBP benefits, it must be presumed that the FSM, by his failure to make an SBP election before age 60, had determined that he would make his election when he applied for retired pay at age 60.

4.  Inasmuch as the FSM died before reaching age 60, he never became eligible to receive retired pay and thus, since he had no beneficiaries designated, no benefits are authorized to be paid.

5.  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.



      __________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)                                         AR20080013072



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ABCMR Record of Proceedings (cont)                                         AR20080013072



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