IN THE CASE OF:	  

		BOARD DATE:	  11 December 2008

		DOCKET NUMBER:  AR20080014941 


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 list his former spouse as his Reserve Component Survivor Benefit Plan (RCSBP) beneficiary as directed in a Military Qualifying Court Order.  

2.  The applicant states, in effect, that in June 2003 he submitted a package of documents to the United States Army Reserve Personnel Command (ARPERSCOM), which included a Military Qualifying Court Order that had been recorded in the Norfolk, Massachusetts County Court on 21 May 2003.  This court order directed his former spouse be named as the beneficiary of his RCSBP and confirmed they were divorced.  He also states that after he began receiving retired pay, both he and his former spouse submitted SBP elections to the Defense Finance and Accounting Service (DFAS) requesting that the coverage be changed from spouse to former spouse.  He further states that instead of making this change, DFAS informed him his SBP changed to no beneficiary and advised him that he would have to apply to this Board for former spouse coverage relief.   

3.  The applicant provides the following documents in support of his application:  a Self-Authored Statement; Data for Payment of Retried Personnel (DD Form 2656); Commonwealth of Massachusetts Probate and Family Court Docket; Copy of Domestic Return Receipt (PS Form 3811); Leave and Earning Statement (LES); and DFAS letters dated 23 August 2007, 3 October 2007 and 22 January 2008. 

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 applicant's record shows he was born on 2 May 1947.  He served in     the United States Army Reserve (USAR) in a commissioned officer status from 22 October 1969 through 21 October 1971.  

3.   On 22 October 1971, he entered the USAR in an enlisted status and on
7 October 1972, the applicant married his now former spouse.  

4.  On 24 January 1975, the applicant was honorably discharged in order to accept a commission, and on 25 January 1975, he was appointed a first lieutenant (1LT) in the USAR.  

5.  On 18 May 1991, the Army Reserve Personnel and Administration Center (ARPERCEN) issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), which informed him he had completed the required years of service necessary to qualify to receive retired pay at age 60 upon application.  

6.  On 3 September 1991, the applicant completed an SBP Election Certificate (DD Form 1883).  In Section II (Marital, Dependency, and Election Status) of this document, the applicant elected "Spouse Only" coverage naming his now former spouse as the beneficiary.  

7.  On 15 January 2003, the applicant and his now former spouse were divorced. 

8.  On 27 January 2003, the applicant completed a Data for Payment of Retired Personnel (DD Form 2656), in which he elected “Spouse Only” coverage and named his now former wife as beneficiary.  In the remarks section of this form, the applicant indicated he was attaching a Military Qualifying Court Order which directed payments to his former spouse.  
9.  On 13 May 2003, the Commonwealth of Massachusetts, County of Norfolk Probate and Family Court ordered (and the member agreed to elect) his former spouse as his irrevocable beneficiary of the SBP by a deemed "Former Spouse" election. 

10.  On 2 May 2007, the applicant was retired and placed on the Retired List.

11.  On 23 August 2007, the applicant responded to a DFAS letter, dated 
9 August 2007, and requested that his SBP election be changed from "Spouse" to "Former Spouse" based on a court order.

12.  On 3 October 2007, DFAS informed the applicant that his request to change his SBP election to "Former Spouse" could not be processed until a complete copy of his final divorce decree had been received.

13.  On 22 January 2008, DFAS informed the applicant that an adjustment to his SBP portion of his retired pay account had been made based on his divorce decree changing his coverage from "Spouse Only" to "No Beneficiary" with an effective date of 2 May 2007.

14.  The applicant provides a Retiree Account Statement, dated 18 June 2007, which shows his former spouse by name as his beneficiary; however, it reflects her as being his "wife" and not former spouse.

15.  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 RCSBP 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.  RCSBP/SBP elections are made by category, and beneficiaries are not designated by name.  For example, if a member elects “Spouse Only” coverage, in the case of divorce and remarriage, the spouse at the time of the member’s death is entitled to receive the annuity unless “Former Spouse” coverage was elected subsequent to the divorce.  

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

17.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage 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.  

18.  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.  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 former spouse should be the beneficiary for his SBP as the "Former Spouse" as directed in the Military Qualifying Court Order of 21 May 2003 was carefully considered and found to have merit.   

2.  The evidence of record confirms that in the Military Qualifying Court Order decree for the applicant and former spouse, which was issued by the Commonwealth of Massachusetts Probate and Family Court, County of Norfolk, on 21 May 2003, the court ordered and the applicant agreed to elect former spouse coverage as his SBP coverage.  It appears the applicant used an incorrect form when he submitted an election naming his former spouse as the irrevocable beneficiary of his SBP annuity within 1 year of the divorce on           15 January 2003.  In addition, he erroneously indicated his coverage as “Spouse Only.” 

3.  The evidence of record clearly shows it was always the intent of the applicant to cover his former spouse under his SBP election as directed and agreed to in the court order provided.  As a result, notwithstanding his administrative errors in using the incorrect form and in identifying his coverage as “Spouse Only” in his 15 January 2003 election, it would be appropriate to correct his record to show that on 15 January 2003 he properly submitted a request to change his SBP election from "Spouse" to “Former Spouse” coverage, and to designate his former spouse as the valid beneficiary for his SBP benefit at this time.  All premiums due as a result of this change should be made accordingly.


BOARD VOTE:

____x___  ___x____  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that he properly requested that his SBP election be changed from “Spouse Only” to “Former Spouse” on 15 January 2003, the date of his divorce from his former spouse, that his request was received and processed by DFAS in a timely manner, and by collecting all back SBP premiums due as a result of this records correction.  




      _______ _   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)                                         AR20080014941



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ABCMR Record of Proceedings (cont)                                         AR20080014941



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