IN THE CASE OF:
BOARD DATE: 08 April 2010
DOCKET NUMBER: AR20090013965
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 she be designated the beneficiary of her deceased former husband's Reserve Component Survivor Benefit Plan (RCSBP) account.
2. The applicant states the premiums were paid. Shortly before his death, the retired former service member (FSM) assured her the benefit was still in place.
3. The applicant provides copies of the FSM's 22 July 2007 death certificate; a DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 3 December 1987; ARPC Form 4001 (Important Information Concerning Your Retired Pay Application); their 18 June 1976 marriage certificate; their 16 July 1998 divorce decree; an undated letter from the Casualty Department of Retired Pay Operations; a handwritten letter from the applicant, dated 28 April 2008; a
30 April 2009 letter from a U.S. Senator; and a 25 April 2009 letter from the Defense Finance and Accounting Service (DFAS) to the Senator.
CONSIDERATION OF EVIDENCE:
1. The FSM, a career Army National Guard (ARNG) officer, completed 21 years of qualifying service for pay at age 60 and voluntarily transferred to the Retired Reserve on 1 July 1988.
2. On 3 December 1987 the FSM completed a DD Form 1883 naming the applicant as his spouse and electing SBP coverage on the full amount of his retired pay under option B (to be effective at age 60).
3. The 16 July 1998 divorce decree lays out the financial arrangements but does not address the RCSBP.
4. On 23 October 2003 the FSM completed a DD Form 2656 (Data for Payment of Retired Personnel) and indicated in item 26g that he elected to not participate in the SBP. He reached his 60th birthday on 12 December 2003.
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 members 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 members retired pay.
6. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established RCSBP coverage for former spouses of retiring members.
7. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (including Reservists).
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 the premiums were paid. Shortly before his death, the retired FSM assured her the benefit was still in place.
2. The divorce decree did not require the FSM to designate the applicant as an RCSBP beneficiary.
3. Upon applying for retired pay at age 60 he elected to not participate in the SBP.
4. There is no documentation to support the applicant's contention and no rationale to support the implied conclusion that those alleged circumstances would warrant the requested relief.
5. 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) AR20090013965
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ABCMR Record of Proceedings (cont) AR20090013965
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