IN THE CASE OF:	  

		BOARD DATE:	  7 October 2010

		DOCKET NUMBER:  AR20100008432 


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, correction of the records of her deceased former spouse, a former service member (FSM), to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.

2.  The applicant states although she and the FSM were divorced, they continued to live together as husband and wife.

3.  The applicant provides a copy of the following:

* DD Form 2656 (Data for Payment of Retired Personnel)
* FSM's death certificate
* DD Form 2656-7 (Verification for Survivor Annuity)
* Employees' Retirement System of Georgia letter to the applicant
* Photographs
* A supporting statement
* Divorce decree
* Letter from the Defense Finance and Accounting Service (DFAS) Retired and Annuity Pay with Form W-4P (Withholding Certificate for Pension or Annuity Pay) and Direct Deposit Form

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Army National Guard (ARNG) on 30 May 1966.  His date of birth is listed as 13 December 1947.

2.  On 5 January 1970, the FSM and the applicant were married.  On
11 December 1986, the FSM was notified of his eligibility for retired pay at age 60 (20-Year Letter).  Three months later he completed a DD Form 1883 (Survivor Benefit Plan Election Certificate) electing full immediate spouse only coverage under Reserve Component Survivor Benefit Plan (RCSBP) election.

3.  The FSM served in the ARNG until 10 July 1992, at which time he was transferred to the retired Reserve in the rank/grade of master sergeant (MSG)/E8.

4.  On 17 April 1998, the applicant and the FSM divorced.

5.  On 20 December 2006, the applicant completed a DD Form 2656, wherein he indicated he was married to the applicant.  He elected SBP spouse coverage to be based on full gross pay without supplemental SBP.

6.  The FSM died on 28 August 2009.  The death certificate lists his marital status as married and lists the applicant as his spouse.

7.  Documents from the Employees' Retirement System of Georgia show the applicant was named as the FSM's beneficiary.  

8.  In the processing of this case, the Board's staff contacted DFAS.  A DFAS official informed the Board's staff that SBP was established on 13 December 2007 for the applicant and she is still listed as his current spouse.  DFAS further stated there was nothing in its database that indicated the FSM was divorced prior to his death and he did not notify DFAS of the divorce.  Additionally, DFAS stated that the database shows that the FSM continued to pay SBP premiums.

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

10.  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.  If death does not occur before 

age 60, the RCSBP costs for options B and C are deducted from the member's retired pay.  Once a member elects either options B or C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP – it automatically rolls into SBP coverage.  If RCSBP option B or C is elected, there is a reservist portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection had the member died prior to age 60.

11.  Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the Uniformed Services Former Spouse Protection Act relating to the SBP.  It permits a person to elect to provide an annuity to a former spouse.  Any such election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date of the decree of divorce.  The member must disclose whether the election is being made pursuant to the requirements of a court order or pursuant to a written agreement previously entered into voluntarily by the member as part of a proceeding of divorce.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM elected to participate in the RCSBP for spouse only in 1987 when he was married to the applicant.  

2.  The FSM paid spouse premiums from the time he turned age 60 to his death. These facts indicate the FSM's intent was for the applicant to receive his SBP benefits.  Therefore, it appears the FSM would have taken the proper actions to ensure the applicant remained the beneficiary of his RCSBP if he had known those actions were required.

3.  As such, it would be equitable and just to correct the FSM's records to show he voluntarily converted his RCSBP spouse coverage to former spouse coverage in a timely fashion.

BOARD VOTE:

___X____  ____X___  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing DFAS accepted and processed his March 1987 RCSBP election of full immediate spouse coverage;

   b.  showing the FSM made a voluntary change in election from spouse to former spouse on 18 April 1998 and that the request was timely received and processed by the appropriate office; and

	c.  paying the applicant the SBP annuity retroactive to the day after the FSM's death minus applicable premiums due.



      ___________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)                                         AR20100008432



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ABCMR Record of Proceedings (cont)                                         AR20100008432



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