IN THE CASE OF:	  

		BOARD DATE:	  24 September 2009

		DOCKET NUMBER:  AR20080014227 


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, the former spouse of a deceased former service member (FSM), requests that the Reserve Component Survivor Benefit Plan (RCSBP) election made by the deceased FSM be changed from spouse coverage to former spouse coverage. 

2.  The applicant essentially states that the FSM failed to comply with a court order to convert his SBP from spouse coverage to former spouse coverage after their marriage was dissolved.  She also essentially states that the correct paperwork to change the FSM’s RCSBP election was sent to the Defense Finance and Accounting Service (DFAS) on 6 April 2007.  

3.  The applicant provides a self-authored letter, dated 12 August 2008; a letter, dated 6 April 2007, from a financial company to DFAS; page 2 of a document with Reserve Component retirement information; page 4 of 5 pages of documents with information on National Guard retirement benefits; the FSM's death certificate; and their final judgment of divorce with Exhibits "A" and "B" in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The FSM's military records show that after receiving his Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), he completed a 
DD Form 2656-5 (Reserve Component Survivor Benefit Plan [RCSBP] Election Certificate) on 2 January 2004.  Section III (Spouse/Dependent Child[ren] Information) shows that he had been married to the applicant since 14 May 1988 and that he had no dependent children.  Section IV (Coverage) of this form shows that he elected spouse-only SBP coverage, and elected Option C (Immediate Annuity) to provide an immediate annuity beginning on the day after his death, whether before or after age 60.  This form was signed by the FSM and properly witnessed.

2.  On 13 December 2005, the FSM was honorably released from the Wisconsin Army National Guard after completing more than 20 years of qualifying service for non-regular retirement.

3.  On 23 March 2007, the FSM and the applicant divorced.  The applicant provided their final judgment of divorce, which was signed by a judge, and which provided that all of the FSM's interest that he acquired as a member of the Army National Guard would be divided pursuant to a Military Order which was attached to the final judgment of divorce and marked Exhibit "B."  This Exhibit "B," which was not authenticated by the judge's signature, essentially shows that the applicant was entitled to 50 percent of the FSM's disposable retired pay and cost of living adjustments.  It also essentially shows that the FSM was to execute such paperwork as was required to make or extend the election of the applicant as the former spouse beneficiary of his RCSBP.

4.  The FSM died on 19 May 2007.  His death certificate shows that he was divorced at the time of his death, which indicates that there is no other person other than the applicant with a valid interest in receiving SBP annuity payments as a result of the FSM's death.

5.  In a letter, dated 16 December 2008, the Transition and Separations Branch, United States Army Human Resources Command, St. Louis, Missouri responded to a Member of Congress, who was attempting to assist the applicant in obtaining death benefits from the Army based on her marriage to the FSM.  This letter essentially informed a Member of Congress that the FSM did not make a voluntary change to his RCSBP to provide former spouse coverage to the applicant.  It also informed a Member of Congress that the FSM's death prior to receiving retired pay negated the applicant's ability to receive her portion of his retired pay. 

6.  The applicant provided a letter, dated 6 April 2007, from a financial company which essentially shows that a court-certified Military Order from the State of Wisconsin, a DD Form 2293 (Application for Former Spouse Payments from Retired Pay), a DD Form 2656-1 (Survivor Benefit Plan [SBP] Election Statement for Former Spouse Coverage), and a court-certified Judgment of Divorce were forwarded to DFAS.    

7.  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 have waited until he/she applied for retired pay and elected to participate in the standard SBP.  The 2001 National Defense Authorization Act changed the RCSBP enrollment procedure.  Soldiers receiving a 20-Year Letter after 31 December 2000 are considered automatically enrolled in the RCSBP under Option C, Spouse Only coverage.  Soldiers are required to respond within 90 days of receipt of their 20-Year Letter to advise the Army of the name of their spouse, or to change the automatic election.  Any change to the automatic election (Option C) required written correspondence to that effect that is signed by both the Soldier and the spouse.  RCSBP elections are by category, not by name.

8.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  

9.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the Uniformed Services Former Spouses’ Protection Act 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, the former spouse of a deceased FSM, contends that the SBP election made by the deceased FSM should be changed from spouse coverage to former spouse coverage. 

2.  By law, incident to a proceeding of divorce, a member has 1 year to provide an annuity to a former spouse by making such an election.  The law also permits the former spouse concerned to request that a former spouse SBP coverage election be deemed to have been made within 1 year of the divorce.  While it appears that the applicant attempted to make a deemed election in April 2007 within 1 year of her divorce from the FSM, Exhibit “B”, which addresses in part the FSM’s RCSBP is not authenticated by a judge’s signature.  As a result, DFAS likely and rightfully denied the applicant’s attempt to make a deemed election, and granting relief to the applicant in this case based upon this unauthenticated document cannot be favorably considered.

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.  In view of the foregoing, there is an insufficient basis for granting relief to the applicant in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X__  ____X___  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  While the Board regrets that a more favorable response could not be accomplished, it wishes to extend its deepest appreciation for the sacrifices she made during her former husband's military career.  



      _______ _ 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)                                         AR20080014227



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ABCMR Record of Proceedings (cont)                                         AR20080014227



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