IN THE CASE OF:	  

		BOARD DATE:	    14 January 2010

		DOCKET NUMBER:  AR20090008003 


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 divorced spouse of the deceased former service member (FSM), requests the record be corrected to show that she made a deemed election as the Reserve Components Survivor Benefit Plan (RCSBP) beneficiary.

2.  The applicant states that the FSM intended her to receive the RCSBP benefit. Her divorce attorney provided the Army with copies of the divorce decree and qualified domestic relations order (QDRO), but she was not told of the necessity to file a deemed election.  The applicant did not know that she was not the RCSBP beneficiary until she applied for the RCSBP benefit and she was denied.

3.  The applicant, in effect, defers to her counsel to submit the documentation in support of her case.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant be made the beneficiary of the FSM's RCSBP account.

2.  Counsel states that all the legal documents associated with the divorce show the FSM intended for the applicant to be named the RCSBP beneficiary.  The divorce attorney notified the Army and the Defense Finance and Accounting Service (DFAS) and provided the court documents.  The records should be corrected to show the applicant made a deemed election at that time.

3.  Counsel provides, in support of the applicant's request, copies of the marriage license, a DD Form 2293 (Application for Former Spouse Payments from Retired Pay), their divorce decree and QDRO, notarized letters from their son and daughters, letters from the FSM's divorce attorney, letters from the applicant's divorce attorney, and the FSM's death certificate.

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 FSM, a career Army Reservist, and the applicant married in 1969.  He was transferred to the Retired Reserve on 14 October 1998.  There is no available evidence that the FSM made an SBP election at the time of his 20 year letter.

3.  The applicant and the FSM divorced effective 27 July 2001.  He died on
25 June 2005.  The death certificate indicates that he was married to a woman other than the applicant.  The FSM would have been eligible to receive retired pay at age 60 on 18 July 2008.

4.  The applicant's counsel submitted the following:

	a.  The divorce decree, filed on 15 April 1999, provided that the FSM was to pay the applicant a monthly allowance of $600 per month for 5 years.  It also provided that the applicant was to receive 50 percent of the FSM's Army retirement.

	b.  On the DD Form 2293, dated 7 March 2001, the FSM, based on a court order, requested that the applicant receive 50 percent of his disposable retired pay.


   c.  The QDRO provided for the same allocation of the FSM's retired pay and he agreed "to elect the Former Spouse (and such former spouse shall be deemed) the irrevocable beneficiary of the SBP Annuity through the member's military retirement and member shall execute such paperwork as is required…."  It also provided that the FSM was to pay the applicant $600 per month for
5 years.

	d.  A notarized letter from their son relating that the FSM intended for the applicant to receive the available benefits from his military retirement.  The applicant was horrified to learn in 2008 there might be a paperwork problem.  During the divorce process they both thought everything concerning his military pay was in order.

   e.   A daughter relates in a notarized letter that as an Air Force personnel specialist she was amazed at the number of forms required.  She does not know whether her late father was aware of the necessity to file the RCSBP form or if he forgot to do it.  However, she is sure that he intended for the applicant to be the beneficiary of those funds.
   
   f.  The other daughter, also in a notarized letter, states that the FSM never neglected his financial obligations and she knows that he intended the applicant to receive the RCSBP benefit.
   
   g.  A notarized letter from the applicant's divorce attorney relates that she provided the QDRO providing for the RCSBP benefit to Army Finance -G Accounting Center in Indianapolis, IN on 1 September 1999 and to DFAS, Cleveland, OH on 10 February 2000.  No response was received nor was her mailings returned.  Since she was not informed that a specific form was required, she believes that what she submitted would be sufficient to establish that a deemed election was filed within one year of the dissolution of the marriage.
   
   h.  Notarized statements from the FSM's divorce attorney state that the FSM intended the applicant to be the RCSBP beneficiary.

5.  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.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay (costs for option C being the more expensive).

6.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established RCSBP coverage for former spouses of retiringd members.

7.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

8.  Title 10, U. S. Code, section 1448(b)(2) permits a person, incident to a proceeding of divorce, to elect to provide an annuity to a former spouse if required by court order to do so.  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.  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 states that the FSM intended her to receive the RCSBP benefit. Her divorce attorney provided the Army with copies of the divorce decree and QDRO, but she was not told of the necessity to file a deemed election.  The applicant did not know that she was not designated as the RCSBP beneficiary until she applied for the RCSBP benefit and she was denied.

2.  The available evidence clearly shows that the FSM had agreed to provide RCSBP coverage for his former spouse.  It appears, however, he may not have known or understood the requirement to file a specific election for "former spouse" coverage.  In addition, since there is no available evidence showing that the FSM made any RCSBP election, it is not clear that the court made a valid decision to award the applicant the RCSBP.

3.  The applicant died on 25 June 2005.  He would have been entitled to retired pay at age 60 commencing on 18 July 2008.

4.  If the FSM had made an RCSBP election for spouse coverage, he had one year from the date of divorce to designate the former spouse as the RCSBP beneficiary.  He failed to do so and the applicant failed to make a request for a deemed election of the RCSBP within one year of the divorce as required by law.
5.  Notwithstanding the fact that her divorce attorney apparently believed that providing the QDRO to the Army at the time of the divorce and to DFAS at the time of his death served that purpose, no SBP election for former spouse coverage was ever made.

6.  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.

7.  In view of the foregoing there is no basis for granting the applicant's requested relief.

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)                                         AR20090008003



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ABCMR Record of Proceedings (cont)                                         AR20090008003



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