IN THE CASE OF:	

		BOARD DATE:	30 July 2009  

		DOCKET NUMBER:  AR20090004943 


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 reconsideration of her earlier request 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 the FSM was not counseled as to the change of beneficiary due to divorce and that her name was left on the DD Form 1883 (Survivor Benefit Plan Certificate) as a means of SBP support due to disability.

3.  The applicant provides a copy of an undated letter to the President of the United States; three letters, dated 2, 16, and 23 March 2009, addressed to this Board; and copies of two previously submitted letters of support, dated 18 March 1996 and 7 December 1998, in support of her request.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080017393, on 19 February 2009.

2.  The applicant submitted a copy of an undated letter to the President of the United States in which she presents a new argument, which was not previously reviewed by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by this Board.

3.  The FSM's records show he was born on 26 October 1951 and enlisted in the Virginia Army National Guard (VAARNG) on 9 August 1972.  His records further show he and the applicant were married in Hampton, VA, on 27 October 1973.  

4.  The FSM's records further show he executed several reenlistments in the VAARNG, served in various staff and leadership positions, and attained the rank/grade of sergeant (SGT)/E-5.  He was honorably separated from the ARNG and transferred to the Retired Reserve on 1 January 1996.  He was credited with over 20 years for retirement.

5.  On 16 February 1996, the FSM completed and submitted a DD Form 1883 in which he indicated that he was married and had dependent children.  He further elected spouse and children, full SBP coverage, Option C (immediate coverage). He authenticated this form by placing his signature in the appropriate place.  In Section III (Family Information), he listed the name of the applicant and their daughter.  

6.  On 30 May 2000, the FSM and applicant were divorced.  The divorce decree does not indicate that the FSM agreed to elect former spouse coverage under the SBP and does not otherwise mention the SBP.  The divorce decree indicated the court was reserving jurisdiction with respect to equitable distribution of property.  

7.  The FSM died on 19 July 2008.  His death certificate shows he was divorced at the time of his death.

8.  There is no indication in the FSM's records that he contacted the Defense Finance and Accounting Service (DFAS) for a former spouse election.  

9.  On 24 September 2008, the Chief, Transition and Separations, U.S. Army Human Resources Command (HRC), St. Louis, MO, 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 decree, that she could have (within one year of the divorce) informed the Army or DFAS 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 ABCMR to request that she be designated as the annuitant of the FSM's RCSBP.  

10.  The HRC official further stated that the law governing the SBP (Title 10, U.S. Code, chapter 73) is quite clear on the requirements for enrollments and changes to a Soldier's enrollment.  The FSM enrolled in the 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.  The applicant submitted a copy of an undated letter to the President of the United States in which she makes the following argument:

	a.  after being married to the FSM for 27 years, she is being told that she is not entitled to the FSM's SBP annuity although her name is listed on the DD Form 1883, which is a permanent decision, and that although she and the FSM were divorced in 2000, they remained friends until his death;

	b.  she became medically disabled 14 years into their marriage and she remains so today.  Knowing that she had no other means of support, the FSM wanted to provide for her financially and she should be entitled to his annuity despite the fact that they were not married at the time of death;

	c.  after being married to a Soldier during his entire military career, a former spouse should be entitled to some kind of benefits since the spouse made as many sacrifices as the Soldier in taking care of the family and in her case, she did not have a choice in doing so as she was disabled; and

	d.  she feels like she is watching the FSM die all over again knowing that what he intended for her is being denied by the Army, the very people he trusted.  If the military forms are not going to be honored, why make the Soldiers sign them?

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), enacted 8 September 1982, established SBP coverage for former spouses of retiring members (also Reservists).  

14.  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.

15.  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 applicant contends that her earlier request to be designated as the annuitant of her deceased former spouse's RCSBP should be reconsidered and honored. 

2.  The evidence of record shows that the applicant and the FSM were married on 27 October 1973.  After several years of service and in conjunction with his transfer to the Retired Reserve in 1996, the FSM submitted an SBP Election Certificate in which he elected full immediate spouse and child coverage.  

3.  The evidence of record 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 the 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.  

4.  SBP elections are made by category, not by name.  Once the applicant and the FSM were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary.  A change in SBP beneficiary would have had to have been a strictly voluntary action on the part of the FSM (absent a provision in the divorce decree), which the evidence of record shows he did not make.


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 to amend the decision of the ABCMR set forth in Docket Number AR20080017393, dated 19 February 2009.



      __________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)                                         AR20090004943



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ABCMR Record of Proceedings (cont)                                         AR20090004943



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