BOARD DATE:	  29 March 2011

		DOCKET NUMBER:  AR20100011807 


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 daughter of a deceased former service member (FSM), requests the FSM's records be corrected to show he changed his Reserve Component Survivor Benefit Plan (RCSBP) coverage from spouse to former spouse.

2.  The applicant states the FSM was not aware he needed or could make any change to his RCSBP because the court ordered him to retain his former spouse (the applicant's mother) as the irrevocable beneficiary of his survivor annuity.

3.  The applicant provides a DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate), two Judgments of Dissolution of Marriage, two Death Certificates, and two letters from the Defense Finance and Accounting Service (DFAS).

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 23 February 1924.  After having had prior enlisted service, he was appointed a Reserve commissioned officer.

2.  The FSM and the applicant's mother married on 22 April 1948.

3.  The FSM's Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) is dated 8 April 1980.  This letter informed him that he had 90 calendar days from the date of the letter in which to submit his RCSBP election.

4.  On 26 June 1980, the FSM completed a DD Form 1883 and indicated he elected to participate in the RCSBP for spouse only coverage, option B, full base amount.

5.  The FSM was placed on the Retired list effective 23 February 1984.

6.  The FSM and the applicant's mother divorced on 1 August 1989.  The Judgment of Dissolution of Marriage ordered the FSM to maintain the applicant's mother as the irrevocable beneficiary of his survivor annuity.

7.  On an unknown date, the FSM married TKH, his second spouse.  They divorced on 12 December 1997.  The Judgment of Dissolution of Marriage does not mention the SBP.

8.  The FSM died on 6 December 2007.

9.  In a letter dated 14 December 2007, DFAS informed the applicant that charges for the SBP were being deducted from the FSM's retired pay up until the time of his death.  This letter also stated that a refund of the cost for the SBP was due to the applicant and any other beneficiary.  In a letter dated 8 September 2008, DFAS informed the applicant that due to the fact the FSM or his ex-spouse did not notify DFAS to change the SBP election to former spouse coverage within a year, their office could not make the change.  DFAS advised the applicant to submit an application for correction of military records.

10.  The applicant's mother died on 23 November 2009.

11.  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.  

12.  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.  

13.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

14.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member's agreement) in those cases where the member was participating in the SBP or was still on active duty and had not yet made an SBP election.

15.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA 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 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.
 
16.  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 contends that the FSM's military records should be corrected to show he changed the RCSBP coverage from spouse to former spouse.

2.  The FSM originally elected to participate in the SBP for spouse only coverage. The Judgment of Dissolution of Marriage required the FSM to provide the applicant's mother with survivor benefits.  However, there is no available evidence showing that the FSM made a voluntary election of former spouse coverage.

3.  The FSM had one year from the date of divorce to change his RCSBP election to former spouse coverage.  He failed to do so and the applicant's mother failed to make a request for a deemed election of the RCSBP within one year of the divorce as required by law.

4.  There is no Government error or injustice in this case.  Under normal circumstances, the Board would have made an equitable correction in the applicant's mother's favor. Unfortunately, the compelling reasons for that correction are no longer present.  The person whom the annuity was intended to benefit is deceased and the applicant is not entitled to the same relief her mother would have received.

5.  In view of the above, 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)                                         AR20100011807



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ABCMR Record of Proceedings (cont)                                         AR20100011807



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