BOARD DATE:	  14 January 2010

		DOCKET NUMBER:  AR20090012228 


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 for entitlement to Reserve Component Survivor Benefit Plan (RCSBP) benefits based on the death of her former husband, a former service member (FSM). 

2.  The applicant states that prior to his death, her former husband elected her to receive his SBP annuity benefits.  She adds that she has been to three officers of the Department of Veterans Affairs for nearly 6 years for guidance and the proper way to fill out the paperwork and that she was neither aware that her former husband had named her as a beneficiary nor did she know that she should have included the SBP annuity benefits in her divorce decree in August 2000.

3.  The applicant provides a copy of a Qualified Domestic Relations Order (QDRO), dated (filed) 29 May 2009; a copy of the FSM's death certificate, dated 20 July 2003; and a copy of her final judgment of divorce, dated 15 August 2000, 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 AR2004100067, on 9 September 2004.


2.  The applicant was previously advised that she had the option to seek relief in a court of appropriate jurisdiction.  She filed a QDRO on 29 May 2009 in the Chancery Court of Washington County, MS, which was not previously reviewed by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The FSM's records show he was born on 15 December 1949 and enlisted in the Mississippi Army National Guard (MSARNG) on 26 November 1969.  He subsequently executed a series of extensions and/or reenlistments in the ARNG and married Sh----, the applicant, on 8 March 1977.  He was honorably discharged in the rank/grade of staff sergeant (SSG)/E-6 on 21 May 1979.

4.  On 24 February 1982, the FSM and the applicant were divorced.

5.  The FSM's records also show he enlisted again in the MSARNG on 8 July 1982 and served through a series of continuous reenlistments.  

6.  On 8 March 1983, the FSM and the applicant were remarried.

7.  On 27 July 1989, the FSM and the applicant were divorced.  Their divorce decree stipulated that any and all other property, real or personal or of whatever nature, which the respective parties had or to which either became entitled, whether before or after the marriage would become his or her separate property except as expressly mentioned or agreed.

8.  On 4 December 1990, the FSM and the applicant were remarried.

9.  On 15 August 1995, by memorandum, Office of the Adjutant General, Military Department, MSARNG, issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This memorandum notified the FSM that he had completed the required years of service and would be eligible for retired pay upon application at age 60.  

10.  On 31 August 1995, the FSM completed a DD Form 1883 (Survivor Benefit Plan Election Certificate).  He indicated that he was married but did not have dependent children, and elected to participate in the RCSBP, spouse coverage, based on the full amount, Option C (Immediate Coverage).  His spouse Sh----, the applicant, authenticated this form by placing her signature in the appropriate block. 

11.  On 5 December 1995, Office of the Adjutant General, Military Department, MSARNG, published Orders 213-063 reassigning the FSM to the Retired Reserve in the rank/grade of SSG/E-6, effective 1 January 1996.
12.  On 15 August 2000, the FSM and the applicant were divorced.  Their divorce decree did not address the RCSBP and indicated that both parties waived, released, or relinquished any claim or right whatsoever, then and thereafter, to the estate of the other, including but not limited to alimony and any other support or payments by whatever name they may be designated, except as provided for in the divorce decree.  

13.  On 20 July 2003, the FSM died at the age of 53.  His death certificate indicates that he was divorced at the time he died.

14.  On 25 September 2003, by letter, the U.S. Army Reserve Personnel Command notified the applicant that there was no provision in the law governing the SBP where a divorced former spouse may be granted an annuity unless both parties voluntarily enact the agreement to provide an annuity in the event of the service member's death.  She was also notified that her divorce decree did not meet this requirement.

15.  On 9 September 2004, the ABCMR denied the applicant's petition for entitlement to SBP benefits based on the death of her former husband, the FSM. The Board indicated that the applicant and the FSM were divorced on 15 August 2000 and that once they were divorced, she was no longer qualified to receive SBP benefits under the spouse option.  Additionally, the FSM did not elect to continue coverage under the former spouse option.

16.  On 20 December 2005, the applicant submitted a request for reconsideration of her case.  She was subsequently notified by letter, dated 24 July 2006, that since her case was originally considered on 9 September 2004, more than a year after the Board's original decision, there was no regulatory provision that allowed for further reconsideration of her case.  However, she was also notified that she had the option to seek relief in a court of appropriate jurisdiction.

17.  On 29 May 2009, through an attorney, the applicant filed a QDRO in the Chancery Court of Washington County, MS.  The QDRO states that since the FSM died in possession of an RCSBP annuity which the applicant was the beneficiary heir of, and since the applicant was not aware of this policy at the time of the divorce and has just recently become aware in trying to get annuity payment, she prays for an order from the Court adjudging and decreeing that the benefits under the RCSBP plan be paid to her.  The QDRO further orders, adjudges, and decrees that the death benefit under the RCSBP annuity in the FSM's name, of which the applicant is the beneficiary, shall be paid to her. 

18.  Public Law 95-397, the Reserve Component SBP (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.  At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else have waited until he/she applied for retired pay and elected to participate in the standard SBP.

19.  Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members and reservists.  

20.  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.

21.  Title 10, U. S. Code, section 1448(f)(3) provides that if a person entitled to retired pay is required under a court order to provide an annuity to a former spouse upon becoming eligible to be a participant in the Plan, the Secretary shall pay an annuity to that former spouse as if the person had been a participant in the Plan and had made an election to provide an annuity to the former spouse, if the Secretary receives a written request from the former spouse concerned that the election be deemed to have been made in the same manner as provided in section 1450(f)(3) of this title.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she is entitled to receive SBP benefits based on the death of her husband, a FSM, was carefully considered.  

2.  The evidence of record shows that the applicant and the FSM were remarried on 4 December 1990.  After several years of service and in conjunction with his transfer to the Retired Reserve in 1996, the FSM submitted an SBP Election Certificate on 31 August 1995, in which he elected full immediate spouse coverage.  

3.  The evidence of record also shows the FSM and the applicant were divorced on 15 August 2000 and their divorce decree did not indicate continued coverage under the SBP as a former spouse.  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.

4.  The QDRO, dated 29 May 2009 and submitted by the applicant, was entered into the Court under an incorrect premise that the applicant was the beneficiary heir of the SBP possessed by the FSM upon his death.  This is a faulty premise. She could not have been a beneficiary as she was not his spouse at the time of death.  By law, any SBP benefits would have to be paid to the beneficiary in effect at the time of death, his spouse, not his former spouse, if they had been married for at least one year.  The applicant was not his spouse at the time of death.

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 AR2004100067, dated 9 September 2004.




      _______ _   _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)                                         AR20090012228





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ABCMR Record of Proceedings (cont)                                         AR20090012228



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