IN THE CASE OF:	  

		BOARD DATE:	  15 January 2009X

		DOCKET NUMBER:  AR20080014433 


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 Reserve Component Survivor Benefit Plan (RCSBP) election of her deceased former spouse, a former service member (FSM), be changed to show former spouse coverage and that she be paid the SBP annuity.  

2.  The applicant states that she was married to the FSM for 34 years while he was in the Army and they had three children.  

3.  The applicant provides three of the FSM's discharge documents; the FSM's National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service); the FSM's Honorable Discharge Certificate from the Army National Guard; her marriage license; birth certificates of her and the FSM's three children; her divorce decree; and the FSM's death certificate.  

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 19 August 1939.  He and the applicant were married on 10 June 1967.  

2.  After having had prior active and inactive service, the FSM enlisted in the Army National Guard on 8 February 1975.  

3.  On 20 June 1990, the FSM received his notification of eligibility for retired pay at age 60 (20-Year Letter).  On 18 July 1990, the FSM completed a DD Form 
1883 (SBP Election Certificate) and enrolled in the RCSBP for spouse and children coverage, full base amount.  The applicant is listed as his spouse under Section III (Family Information).  

4.  The FSM was discharged from the Army National Guard on 6 March 1991 and transferred to the U.S. Army Reserve (USAR) Control Group (Retired) on the following date.

5.  The FSM reached age 60 on 19 August 1999 and applied for retired pay.  He was placed on the retired list on 30 November 1999 in the rank of sergeant (SGT)/E-5.

6.  The FSM and the applicant were divorced on 28 November 2001.  The Property Settlement Agreement is not available and the divorce decree does not mention the SBP.  

7.  The FSM remarried on 20 December 2004.  

8.  There is no evidence which shows the FSM submitted a written request, or that the applicant submitted a written request for a deemed election, to the Defense Finance and Accounting Service (DFAS) to change the SBP coverage from spouse to former spouse coverage within one year of their divorce.

9.  The FSM died on 3 June 2008.  His death certificate indicates he was married to J____, his current spouse, at the time of his death.

10.  Information obtained from DFAS on 17 November 2008 revealed that his widow, J____, is currently drawing the SBP annuity.  

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.  Elections are made by category, not by name.

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.  
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.

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

15.  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 retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

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 FSM received his 20-Year Letter on 20 June 1990, and he elected to participate in the RCSBP for spouse and children coverage.  He was married to the applicant at that time.

2.  The FSM and applicant were divorced on 28 November 2001.  The divorce decree does not mention the SBP.  There is no evidence which indicates the FSM or the applicant submitted a written request to DFAS to change the SBP coverage from spouse to former spouse within one year of their divorce.

3.  The FSM remarried on 20 December 2004.  By law, the current spouse became the lawful beneficiary for SBP coverage on the first anniversary of the remarriage.

4.  The FSM died on 3 June 2008.  The evidence of record shows he was married at the time of his death.  Since the lawful beneficiary of the FSM's SBP is his widow, and in the absence of a timely deemed election, the ABCMR cannot take away her right to the SBP without her irrevocable consent or due process of law.  Therefore, it would be inequitable to grant the applicant’s request.

5.  The applicant may seek reconsideration of the Board’s denial if she obtains a notarized statement from the FSM’s widow consenting to the correction in favor of the applicant and acknowledging the Board’s action would terminate the widow’s annuity.  In the alternative, the Board could grant relief only with a judgment from a court of competent jurisdiction, in a suit joining the FSM’s widow as a party, that declared the applicant the beneficiary of the SBP.

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)                                         AR20080014433



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080014433



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1