BOARD DATE:	  30 November 2010

		DOCKET NUMBER:  AR20100011783 


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, the former spouse of the deceased former service member (FSM), requests entitlement to Survivor Benefit Plan (SBP) benefits.

2.  The applicant states her former spouse was required, by court order, to assign all pension survivorship benefits to her.  He violated both the court order and the divorce decree when he failed to make this assignment.  Therefore, it is necessary to correct the record to show she is the sole recipient of all pension survivorship benefits.

3.  The applicant provides the FSM's death certificate, their marriage license, and divorce decree.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel provides no additional request, statement, or evidence.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The records show the FSM was born on 9 April 1939 and enlisted in the New Jersey Army National Guard (NJARNG) on 1 March 1982.  He married his former spouse, Marie, the applicant, on 19 November 1990.

3.  On 14 May 1996, the New Jersey National Guard issued the FSM a memorandum, Subject:  Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This memorandum notified the FSM he had completed the required years of service and he would be eligible for retired pay upon application at age 60.  However, he was approved for an extension of military service beyond age 60 to allow him to retire under the Federal Employee Retirement System (FERS).  His new expiration term of service was adjusted to 30 April 2001.

4.  On 11 June 1996, the FSM completed a DD Form 1883 (SBP Election Certificate).  He indicated he was married and had dependent children.  He further elected spouse only Reserve Component SBP (RCSBP) coverage, Option C (immediate coverage), based on the full amount.  The FSM, his then spouse (the applicant), and a witness authenticated this form by placing their signatures in the appropriate blocks.

5.  On 23 April 2001, the U.S. Army Reserve Personnel Command, St. Louis, MO, published Orders P04-301949, retiring the FSM and placing him on the Retired List in his retired rank/grade of SSG/E-6, effective 1 May 2001.

6.  In June 2001, the FSM and applicant entered into a marital settlement agreement wherein the FSM agreed that his former spouse (the applicant) would receive spousal support and have survivorship rights to his military pension.
On 6 June 2001, the couple was divorced.  The court's order incorporated the terms of their settlement agreement.

7.  On 30 June 2001, the FSM married his current spouse, Rosalba, and on 
31 July 2001 he requested the Defense Finance and Accounting Service (DFAS) stop his RCSBP premiums because he had divorced his first wife.

8.  In a letter to DFAS, dated 30 September 2001, he further requested his new wife, Rosalba, be covered under the SBP.

9.  On 11 March 2010, the FSM died.  His certificate of death shows he was married at the time of death to Rosalba and DFAS retired pay records show she is currently receiving SBP payments.

10.  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.  Elections are made by category, not by name.  An RCSBP election rolls into the standard SBP at age 60.

11.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP coverage for former spouses of retiring members.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

12.  Title 10, U.S. Code, section 1448(b)(3) 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 one 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.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, the former spouse of a deceased former service member (FSM), requests entitlement to SBP benefits.

2.  The evidence of record shows subsequent to receiving his 20-year letter the FSM elected spouse RCSBP coverage based on the full amount.  However, he divorced the applicant on 6 June 2001.  Their divorce decree stated the applicant would have survivorship rights to his military pension.

3.  There is no indication the FSM submitted the necessary forms to change his RCSBP election from "spouse" to "former spouse" within 1 year of the divorce Indeed, to the contrary, it appears he deliberately elected not to comply with this provision of the marital settlement.
4.  There is no indication the applicant requested the RCSBP coverage be deemed to her as a former spouse.  Absent a deemed election request from the applicant, SBP spouse coverage vested in his new wife one year after marriage.  She is currently in receipt of an annuity and cannot be deprived of her interest without due process.  The applicant may seek to obtain a voluntary release of SBP interest from her former husband's widow or seek relief in a court of competent jurisdiction in an action to which the widow has been joined as a proper party.

5.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20100011783





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)