BOARD DATE:	  29 July 2010

		DOCKET NUMBER:  AR20090020974 


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:

The applicant, the former spouse of a deceased former service member (FSM), defers to counsel.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests, in effect, that the records of the FSM be corrected to show:

* the applicant is entitled to Survivor Benefit Plan (SBP) benefits 
* the applicant is eligible to receive 20 percent of the FSM's retired pay

2.  Counsel states, in effect, that the FSM completed a DD Form 1883 (Survivor Benefit Plan Election Certificate) in which he falsely indicated on the document that he was not married which denied the applicant's SBP coverage.  

3.  Counsel further states that the FSM divorced the applicant in June 2008.  The divorce decree indicated that the applicant was to receive 20 percent of the FSM's retired pay.  When the applicant applied for the retired pay in accordance with the divorce decree she was informed since the FSM failed to designate a survivor there were no retirement benefits available for her.

4.  Counsel provides:

* South Carolina Army National Guard (SCARNG) memorandum of Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated 
3 January 2001 
* DD Form 1883
* State of South Carolina Divorce Decree, dated 26 June 2008
* DD Form 2293
* SCARNG memorandum, dated 10 September 2009
* State of South Carolina Certification of Vital Record, dated 18 November 2009

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 8 September 1957.  He had prior service in the U.S. Air Force and enlisted in the Army National Guard (ARNG) on 22 August 1988.

2.  On 28 May 1994, the FSM married J______ M__, the applicant.

3.  On 21 January 2001, the FSM received his 20-year letter.

4.  On 21 January 2001, the FSM completed a DD Form 1883.  On this form, the FSM indicated:

* he was not married and had no dependent children
* elected Option A “I DECLINE TO MAKE AN ELECTION AT THIS TIME, (I will remain eligible to make an election for coverage at age 60)"
* spouse concurrence signature section is blank

5.  On 16 April 2002, the FSM was transferred to the Retired Reserve.  

6.  On 26 June 2006, the FSM and J______ M__ divorced.  The judgment of divorce states, in pertinent part, that "Wife shall be entitled to twenty percent of Husband’s ARNG retirement plan which he may draw upon reaching the age of 60 years, and in the event additional documentation and/or orders are required to vest Wife…."

7.  The FSM died on 2 August 2009 at the age of 51.

8.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

9.  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.

10.  Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members and Reservists.

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.  Before the law was amended as noted below, 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 wait until he/she applies for retired pay and elect to participate in the standard SBP.  In other words, failure to elect an option resulted in the default election of option A.

12.  Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60.  The law is applicable to cases where 20-year letters have been issued after 1 January 2001.  In other words, failure to elect an option or obtain spousal consent to another option now results in the default election of option C.

13.  Title 10, U.S. Code, section 12731(a) states that a person is entitled, upon application, to retired pay if the person is at least 60 years of age, has performed at least 20 years of qualifying service, and the last eight years of qualifying service have been performed while a member of a Reserve Component.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the FSM falsely indicated he was not married when he elected not to participate in the RCSBP after completing a DD Form 1883 prior to transferring to the Retired Reserve on 16 April 2002.  In fact, he was married to the applicant at that time.  Since the applicant was not given the option to concur with the RCSBP election the DD Form 1883 was invalid and she was automatically enrolled in the RCSBP for immediate full spouse coverage.  

2.  However, once the applicant and the FSM were divorced on 26 June 2006 she was no longer his spouse and no longer an eligible RCSBP beneficiary.  Since the divorce decree did not provide for former spouse SBP coverage, such a change in RCSBP coverage would have been a strictly voluntary action on the part of the FSM.  There is no evidence such a change was made.

3.  The divorce decree mentions the FSM's retired pay.  It stated, "Wife shall be entitled to twenty percent of Husband’s ARNG retirement plan which he may draw upon reaching the age of 60 years…."  However, the FSM died at the age of 51.  Title 10, U.S. Code, section 12731(a) specifically states, in part, that a person is entitled, upon application, to retired pay if the person is at least 60 years of age.  Unfortunately, the FSM did not reach the age 60 years.  Therefore, the applicant is not entitled to his retired pay.  

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)                                         AR20090020974



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ABCMR Record of Proceedings (cont)                                         AR20090020974



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