IN THE CASE OF:	  

		BOARD DATE:	 19 February 2009

		DOCKET NUMBER:  AR20080017393 


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 she be designated as the annuitant of her deceased former spouse's, a former service member (FSM), Reserve Component Survivor Benefit Plan (RCSBP).

2.  The applicant states, in effect, that the FSM was not advised that he could elect former spouse coverage after their divorce.  She also states, in effect, that the FSM listed her name on his DD Form 1883 (SBP Election Certificate) and it was his wish that she receive RCSBP.  The law does state that the beneficiary on the DD Form 1883 is irrevocable; therefore, she should be designated as the annuitant of the FSM's RCSBP.   

3.  In support of her application, the applicant provides copies of their Certificate of Marriage; the FSM's DD Form 1883; the FSM's Army National Guard (ARNG) Retirement Points History Statement; their decree of divorce; the FSM's death certificate; her Standard Form 1199A (Direct Deposit Sign-up Form); her W-4P (Withholding Certificate for Pension or Annuity Payments); her DD Form 2656-7 (Verification for Survivor Annuity); two letters in support of her request; and a letter from the Transition and Separations Branch, Army Human Resources Command (AHRC), St. Louis, Missouri.  

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 26 October 1951.  His military records show he enlisted in the Virginia ARNG on 9 August 1972.  

2.  The applicant submits a copy of their Certificate of Marriage that shows she was married to the FSM on 27 October 1973.  

3.  The FSM was separated from the ARNG for the purpose of retirement on 1 January 1996.  He was credited with over 20 years of active Federal service and was transferred to the Retired Reserve.

4.  The applicant also submits a copy of the FSM's DD Form 1883, dated 16 February 1996, that shows he elected to provide an SBP annuity based on the full amount of retired pay for "Spouse and Children."  In Section III (Family Information), he listed the name of the applicant and their daughter.  

5.  The applicant also submits two letters of support, wherein each person quoted the FSM as saying he would take care of the applicant financially.  These letters are dated prior to the couple's divorce which was preceded by a nearly five year separation.  

6.  The applicant further submits a copy of the divorce decree that shows she was granted a divorce from the FSM on 30 May 2000.  The decree shows the FSM was ordered to pay a spousal support arrearage.  The decree does not indicate that the FSM agreed to elect former spouse coverage under the SBP and does not otherwise mention the SBP.  The decree indicated the court was reserving jurisdiction with respect to equitable distribution of property.  

7.  The FSM died on 19 July 2008.  

8.  There is no evidence the FSM contacted the Defense Finance and Accounting Service (DFAS) for a former spouse election.  

9.  On 24 September 2008, the Chief, Transition and Separations, AHRC, St. Louis, advised the applicant, in effect, that it was unfortunate that her attorney did not advise her of the availability of her continued coverage under the RCSBP as a former spouse, or that failing such an entry in the divorce, that she could (within one year of the divorce) inform the Army or Finance that she wanted continued coverage as a former spouse.  The letter further advised that it was also possible that the FSM could have voluntarily changed his coverage, after the divorce, to cover her as a former spouse.  These avenues were not pursued; therefore, her remaining options were:  (1) return to divorce court and ask for an amendment to the divorce decree that would provide her continued coverage as a former 


spouse under the RCSBP or (2) petition the Army Board for Correction of Military Records (ABCMR), asking that she be designated as the annuitant of the FSM's RCSBP.  

10.  The AHRC official further stated that the law governing SBP (Title 10, United States Code (USC) 73) is quite clear on the requirements for enrollments and changes to a Soldier's enrollment.  The FSM enrolled in RCSBP when he and the applicant were married and had the marriage continued, so would the RCSBP.  The marriage ended and that terminated the applicant's status as the FSM's spouse.  The severing of status ended the RCSBP coverage.

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.    

12.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members.  

13.  Title 10, USC, 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.

14.  Title 10, USC, 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 evidence of record shows the FSM and his former spouse, the applicant, were married on 27 October 1973.  The FSM was separated from the ARNG and transferred to the Retired Reserve on 1 January 1996.  On 16 February 1996, the FSM elected to provide an SBP annuity to his spouse (the applicant) and children.

2.  The evidence also shows the FSM and the applicant were divorced on 30 May 2000 and their divorce decree did not indicate continued coverage under the SBP as a former spouse.  Although the divorce decree indicated the court was reserving jurisdiction with respect to equitable distribution of property, the applicant has not submitted evidence that the court awarded her SBP in any subsequent proceeding.  There is also no evidence the FSM notified DFAS within one year of the divorce of an election for former spouse coverage, as required by the SBP statute.  

3.  The applicant provides a copy of a letter from the Transition and Separations Branch, AHRC, St, Louis, in which she was advised that when the marriage between her and the FSM ended, that terminated her status as his spouse and ended the SBP coverage.  She was also advised that she could return to court and ask for an amendment to her divorce to provide continued SBP coverage as a former spouse or petition the ABCMR.   

4.  There is no evidence that the FSM attempted to change his coverage after the divorce or prior to his death.  The applicant has not provided sufficient evidence of intent on the part of the FSM.  The only intent clearly proven is that he elected and intended to provide spouse and children SBP coverage prior to their divorce.  Therefore, there is no legal basis to grant the applicant relief.  Unfortunately, she is not entitled to be granted SBP former spouse benefits. 

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080017393



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ABCMR Record of Proceedings (cont)                                         AR20080017393


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