IN THE CASE OF:	  

		BOARD DATE:	  1 JULY 2010

		DOCKET NUMBER:  AR20090021634 


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, in effect, that the records of her former spouse, a deceased former service member (FSM), be corrected to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) for former spouse beneficiary coverage based on full retired pay with an immediate annuity within the time limit prescribed by law.
 
2.  The applicant states the FSM's DD Form 1883 (Survivor Benefit Plan Election Certificate) does not align with their divorce decree set forth by the Montana Supreme Court, which she indicates granted her 45 percent of the FSM's military pension (retired pay at age 60).

3.  The applicant provides:

* Correspondence with her elected representatives
* National Guard Bureau (NGB) 23B (Army National Guard Retirement Points History Statement)
* FSM's Death Certificate
* DD Form 2293 (Application for Former Spouse Payments from Retired Pay) with four related documents
* NGB Form 22 (Report of Separation and Record of Service)
* FSM's DD Form 1883
* Orders 071-002
* Notification of Eligibility for Retired Pay at Age 60
* Supreme Court of the State of Montana documents (14 pages)
* Citation of FSM's appointment to first sergeant in the Reserve of the U.S. Marine Corps
* Marriage Certificate

CONSIDERATION OF EVIDENCE:

1.  The FSM's date of birth is shown as 7 April 1947.  His records show he enlisted in the U.S. Marine Corps Reserve on 28 August 1967.  He enlisted in the Army National Guard on 18 July 1991.  The highest rank/grade he held was first sergeant/pay grade E-8.

2.  The applicant provides a marriage certificate which shows she married the FSM on 2 September 1967.

3.  The applicant states the effective date of her divorce from the FSM was 10 March 1994.

4.  In a Supreme Court of the State of Montana ruling filed on 10 March 1994, the Court stated that the District Court awarded the applicant 45 percent of the FSM's military pension, which he would only be eligible to receive if he completed 5 more years of service in the Reserves.  The document further stated the applicant would receive 45 percent of nothing if the FSM failed to complete his twenty-year service requirement.  This document contains no mention of the SBP.
  
5.  The FSM was issued a Notification of Eligibility for Retired Pay at Age 60 (commonly known as the 20-Year Letter), which contains a date stamp indicating it was processed by the Montana Army National Guard on 30 December 1997.  Paragraph 1 of this document stated the FSM had completed the required years of service and would be eligible for retired pay upon application at age 60.

6.  In conjunction with the 20-Year Letter he completed a DD Form 1883 on 12 December 1997.  The election certificate shows the applicant was not married at the time and had no dependent children.  The form shows he elected to decline enrollment and choose at age 60 whether to start SBP participation (Option A).

7.  The FSM's NGB Form 22 shows he was separated from the Army National Guard and transferred to the Retired Reserve, effective 7 April 1998, after completing 20 years, 8 months, and 18 days of total military service for retired pay purposes and more than 27 years of total service for pay purposes.

8.  Block 1 (Request Statement) of the DD Form 2293, dated 22 March 2000, shows the applicant requested that the Defense Finance and Accounting Service (DFAS) make direct payment from the retired pay of the FSM based on an enclosed court order.  The amount requested was 45 percent of the FSM's disposable retired pay.

9.  The applicant provided a death certificate showing the FSM died on 29 August 2004 at the age of 57.

10.  Public Law 92-425, the SBP, enacted 21 September 1972, established the SBP.  It provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Elections are made by category, not by name.  An election, once made, is permanent and irrevocable except as provided for by law. 

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.

12.  Title 10, U. S. Code, section 12731(a)(d), states in pertinent part, a Soldier is entitled, upon application, to retired pay computed under section 12739 of this title if the Soldier is at least 60 years of age and has performed at least 20 years of qualifying service while a member of the reserve component of an armed force.  The Secretary concerned shall notify each Soldier who has completed the years of service required for eligibility for retired pay.  The notice shall be sent, in writing, to the Soldier within 1 year after the Soldier completes that service.  The written communications shall include notice of the elections available to such persons under the SBP, the Supplemental SBP, and the effect of such elections.

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.

14.  Department of Defense Management Regulation, paragraph 300101, states that entitlement to retired pay terminates on the date of the retiree's death.



DISCUSSION AND CONCLUSIONS:

1.  The Supreme Court of the State of Montana ruling filed on 10 March 1994 indicates the District Court awarded the applicant 45 percent of the FSM's military pension (retired pay at age 60).  This document contains no mention of SBP.

2.  The FSM died prior to attaining age 60.  Though the court granted the applicant 45 percent of the FSM's retired pay, unfortunately, any entitlement to military retired pay terminated effective the date of his death.

3.  The applicant contends the FSM failed to comply with the court order when he did not elect former spouse SBP with immediate coverage.  However, the FSM was not married to the applicant at the time of his SBP election and the Supreme Court of the State of Montana document makes no mention of the SBP.  As such, there is no basis for correcting the FSM's DD Form 1883 to show he elected Option C for his former spouse (the applicant).

4.  Unfortunately, the applicant is not entitled to SBP immediate coverage as a former spouse. 

5.  Regrettably, 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)                                         AR20090021634



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ABCMR Record of Proceedings (cont)                                         AR20090021634



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