BOARD DATE:	 31 May 2011 

		DOCKET NUMBER:  AR20100028722 


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 record of her former husband, a deceased former service member (FSM), to show he made an election for former spouse coverage under the Survivor Benefit Plan (SBP).

2.  She states, in effect, the FSM did not know how to properly designate her as his SBP beneficiary, but wanted her to have the coverage.  She states they were married for 26 years.

3.  She provides:

* self-authored statements
* a DD Form 1883 (Survivor Benefit Plan Election Certificate)
* letters she received from the Defense Finance and Accounting Service (DFAS)
* the FSM's death certificate
* marriage licenses and marriage certificates
* pay statements
* a DD Form 2656-7 (Verification for Survivor Annuity)
* a withholding certificate and direct deposit sign-up form
* a Notice of Entry of an Amended Qualified Domestic Relations Order filed in the Circuit Court for the County of Newaygo, MI

CONSIDERATION OF EVIDENCE:

1.  The record shows the FSM was born on 10 January 1945.

2.  Following periods of service in the U.S. Navy and U.S. Navy Reserve, the FSM enlisted in the Army National Guard (ARNG) on 5 December 1981.

3.  A marriage certificate provided by the applicant shows she married the FSM on 6 August 1971.  This document shows her date of birth (DOB) as 27 September 1948.

4.  The available records do not show when they first divorced; however, the applicant provides a second marriage certificate showing they remarried on 24 December 1993.

5.  A Judgment of Divorce shows they divorced on 29 August 1994.  The court ordered that the applicant would receive 50 percent of benefits the FSM had accrued under the Michigan ARNG Pension and Retirement Plan up to the date of the court's judgment.  The court also ordered that the applicant would not be treated as the FSM's surviving spouse for purposes of applying the post-retirement survivor annuity provisions of Title 26, U.S. Code, sections 401(a)(11) and 417.

6.  On 30 January 1997, the FSM was notified he had completed the required years of service to be eligible for retired pay at age 60.

7.  On 24 February 1997, he completed a DD Form 1883 making his election for the Reserve Component SBP (RCSBP).  He indicated he was not married and elected coverage for a natural person with insurable interest and option B.  By choosing option B, he elected to provide an annuity beginning on the 60th anniversary of his date of birth if he died before that date, or the day after the date of his death if he died on or after his 60th birthday.  He named the applicant as the natural person with insurable interest.  The form shows her DOB as 27 September 1948.

8.  On 30 May 1997, he was honorably discharged from the ARNG and transferred to the U.S. Army Reserve Control Group (Retired).  He completed 20 years, 10 months, and 5 days of total service for pay.

9.  He was placed on the Army of the United States Retired List effective 10 January 2005, the day he reached age 60.

10.  The applicant provides one of the FSM's Retiree Account Statements with an effective date of 5 December 2005.  The statement shows the FSM elected spouse-only SBP coverage and shows his spouse's DOB as 27 September 1948.

11.  The applicant provides an Amended Qualified Domestic Relations Orders showing on 18 January 2007 a court amended a Qualified Domestic Relations Order that had been entered with the court on 28 August 2006.  The amendment excluded any reference of "accrued benefits" and ordered that the applicant receive 50 percent of the FSM's military retired pay.  The order dated 28 August 2006 is not available for review.

12.  The death certificate provided by the applicant shows the FSM died on 25 May 2010 and was divorced at the time.

13.  On 22 July 2010, DFAS informed the applicant it had received the documentation required to establish her SBP annuity and had deposited the amount she was due for the period 26 May to 30 June 2010 into the account she had designated.

14.  She provides an undated letter from DFAS showing it had identified an overpayment of her SBP annuity in the amount of $797.33 for the period 1 May to 31 July 2010.

15.  On 1 December 2010, DFAS informed her that her request for a waiver of indebtedness in the amount of $797.33 was approved.

16.  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 to include persons of insurable interest should the Reservist die before reaching age 60.  Three options are available.

	a.  Option A allows Reservists to decline enrollment upon notification of retirement eligibility and allows Reservists to elect coverage at age 60.

	b.  Option B allows Reservists to elect to provide an annuity beginning on the 60th anniversary of their birth should they die before age 60 or on the day after the date of death should they die after their 60th birthday.

	c.  Option C allows Reservists to elect to provide an annuity immediately upon their death whether before or after age 60.

17.  Public Law 95-397 further provides that 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 for it automatically rolls into SBP coverage.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member's retired pay.  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 should the member have died prior to age 60.

18.  Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members and Reservists.  The insurable interest option was authorized for beneficiaries following divorce if previously covered under the "spouse" option.

19.  Public Law 99-145, dated 8 November 1985, permitted retirees to elect SBP coverage for a former spouse under spouse coverage provisions vice insurable interest provisions.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence supports the applicant's request for correction of the FSM's records to show he elected former spouse coverage under the RCSBP.

2.  Although a court ordered that the applicant would not be treated as the FSM's surviving spouse for purposes of applying post-retirement survivor annuity provisions in U.S. Code, the court order in no way prohibited him from voluntarily electing to do so.

3.  Although he was not required to do so by the terms of their divorce, the FSM later elected RCSBP coverage and named her as an insurable interest.  At the time, he should have elected to provide coverage for her as a former spouse under spouse coverage provisions, but it appears he used an obsolete election form that did not show the available coverage options for a former spouse.

4.  The Retiree Account Statement provided by the applicant shows the FSM had paid for spouse-only RCSBP coverage and shows the applicant's DOB as the spouse's DOB.  The available documentation also shows that DFAS paid the annuity to her for a brief period after his death and, for reasons unclear, determined she was not an eligible beneficiary.

5.  The preponderance of evidence indicates the FSM intended that his former spouse should receive an RCSBP annuity in the event of his death and paid for the coverage.  It would be appropriate to correct his DFAS records to show he elected former spouse coverage and option B under the RCSBP.  The applicant's annuity payments should recommence from the date of her last payment.



BOARD VOTE:

___x_____  __x___  _____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the FSM be corrected by showing he filed a timely request for election of former spouse coverage, option B, under the RCSBP.



      ____________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)                                         AR20100028722



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ABCMR Record of Proceedings (cont)                                         AR20100028722



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