IN THE CASE OF:	  

		BOARD DATE:	    4 November 2010

		DOCKET NUMBER:  AR20100013902 


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

2.  The applicant states when her former husband retired in 1992, he elected enrollment in the SBP.  Upon his death in August 2009, she contacted officials at the Defense Finance and Accounting service (DFAS) to notify them of his death. However, DFAS officials told her she was a beneficiary but she was not entitled to the annuity because a form was not completed at the time she and the FSM divorced in 2005.  She was told the FSM was given a pamphlet with all the information including an application to correct the records upon his retirement; however, this information was lost during the 13 years prior to their divorce.  Had she been aware of any requirements, she would have completed the paperwork on time.

3.  The applicant provides copies of the FSM's National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), Orders 016-35 (Retired Reserve), marriage certificate, divorce decree, and death certificate.

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 4 October 1947.  He enlisted in the Regular Army on 23 January 1967 and he married his spouse, Shirley, the applicant, on 13 September 1968.
2.  He was honorably released from active duty on 22 January 1970 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.

3.  He enlisted in the California Army National Guard (CAARNG) on 21 October 1974.  He served through multiple reenlistments or extensions, in various staff and leadership positions, and he attained the rank/grade of command sergeant major (CSM)/E-9.

4.  On 30 March 1992, the Office of the Adjutant General, CAARNG, published Orders 016-34 honorably discharging the FSM from the ARNG and transferring him to the Retired Reserve, effective 1 April 1992. 

5.  On 1 April 1992, the Office of the Adjutant General, CAARNG, issued the FSM a memorandum, Subject:  Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This memorandum notified him he had completed the required years of service and he would be eligible for retired pay upon application at age 60.

6.  On 15 July 1992, 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.  He, his spouse (the applicant), and a witness authenticated this form by placing their signatures in the appropriate blocks.  

7.  In March 2005, the FSM and applicant entered into a marital settlement agreement wherein the FSM agreed that his former spouse (the applicant) would receive spousal support.  However, the agreement was otherwise silent regarding the SBP, although reference is made to a future agreement dealing with his military retired pay.

8.  She submitted page 1 of a 2-page "Judgment."   This page shows their agreement was entered into the Tulare County Superior Court, Visalia, CA, on 18 July 2005, and their marriage was subsequently dissolved on 23 September 2005. 

9.  There is no indication the FSM notified DFAS of the divorce or that his spouse, the applicant, submitted a request for deemed election within one year of their divorce.  Additionally, there is no indication the FSM changed his RCSBP coverage from "spouse" to "former spouse" coverage.

10.  On 27 September 2007, the U.S. Army Human Resources Command, St. Louis, MO, published Orders P09-791894, retiring the FSM and placing him on the Retired List in his retired rank/grade of CSM/E-9, effective 4 October 2007, his 60th birthday.

11.  On 30 August 2009, the FSM died.  His certificate of death shows he was divorced at the time of death.  Additionally, there is no indication in his records that he remarried subsequent to his divorce from the applicant.

12.  An email, dated 30 September 2010, from DFAS indicated the FSM continued to pay for the SBP until his death.  

13.  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.

14.  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).

15.  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.

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 evidence of record shows subsequent to receiving his 20-year letter, the FSM elected full RCSBP spouse coverage based on the full amount.  However, 

he and the applicant were divorced on 23 September 2005.  Their divorce decree was silent regarding the RCSBP.  There was no stipulation that she would remain the designated beneficiary of his RCSBP.  

2.  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 and there is no indication she requested the RCSBP coverage be deemed to her as a former spouse.  

3.  RCSBP elections are made by category, not by name.  Once she and the FSM were divorced, she was no longer his spouse.  Nevertheless, upon reaching age 60 and receiving retired pay, he began to pay RCSBP and SBP premiums until his death, which is indicative of the fact that he intended to provide an annuity for the applicant's benefit.

4.  There is sufficient evidence to show the FSM's intent was to change the RCSBP coverage from "spouse" to "former spouse" and, as such, his record should be corrected to show he did so and his request was received and processed by DFAS in a timely manner.  Therefore, she should be entitled to the annuity.

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 the FSM changed his RCSBP coverage from "spouse" to "former spouse" coverage within 1 year of their divorce;

	b.  showing his request was received by DFAS and processed by the appropriate office in a timely manner; and

	c.  paying the applicant the SBP annuity retroactive to the day after the FSM's death.



      __________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)                                         AR20100013902



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ABCMR Record of Proceedings (cont)                                         AR20100013902



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