IN THE CASE OF:	

		BOARD DATE:	  9 August 2011

		DOCKET NUMBER:  AR20100030282 


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 husband, a retired former service member (FSM), to show:

	a.  he made a voluntary election for former spouse immediate coverage under the Reserve Component Survivor Benefit Plan (RCSBP) on the full base amount of his retired pay within 1 year of their divorce; and

	b.  she filed a claim for the SBP annuity in a timely manner following the FSM's death.

2.  The applicant states she was denied her former spouse's retirement benefits due to their divorce.  She states the FSM listed her as the beneficiary for his retirement benefits to begin the day following his passing.  She further states that she and the FSM did their own divorce because they did not have any assets and their children were already grown.  She adds that the FSM was unable to be present for the divorce due to his multiple health issues.  She states they both believed everything was in order for her to continue as the beneficiary for his retirement benefits because she had already been named his beneficiary.  She states that if she had known that it had to be listed in their divorce decree, it would have been listed there. 

3.  The applicant provides the FSM's death certificate; their marriage certificate; their divorce judgment which shows her name change; a letter from her daughter to the Board; a Notification of Eligibility for Retired Pay at Age 60 letter (commonly referred to as a 20-year letter); a DD Form 1883 (Survivor Benefit Plan Election Certificate); Headquarters, Maine National Guard Orders 118-1 and 
97-11; NGB Form 22 (National Guard Bureau Report of Separation and Record of Service); and Retirement Points History Statement.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 21 February 1950.  His military records show he enlisted in the Army National Guard (ARNG) on 24 March 1969.  He completed initial entry training, was awarded the military occupational specialty of combat engineer, and the highest rank/grade he attained while serving was staff sergeant/E6.

2.  The FSM married the applicant on 29 November 1969.

3.  The FSM was issued a Notification of Eligibility for Retired Pay at Age 60 which was prepared on 3 April 1989.

4.  A DD Form 1883, dated 23 May 1989, shows the FSM elected spouse and children coverage based on his full retired pay with option C (immediate coverage).

5.  Headquarters, Maine National Guard Orders 97-11, dated 17 May 1990, and the FSM's NGB Form 22 show he was honorably discharged from the ARNG and assigned to the U.S. Army Reserve (USAR) Control Group (Retired), effective 15 May 1990, after completing 21 years, 1 month, and 22 days of total service for pay.

6.  On about 18 or 19 December 2005, the applicant and the FSM were divorced in the State of Maine.  There is no mention of the FSM's retirement benefits/SBP in the divorce judgment.

7.  The applicant provided a Certificate of Death showing the FSM died on 5 December 2008 at the age of 58 and that he was divorced at the time of his death.

8.  A letter from the applicant's daughter in support of this application states the FSM made her (the daughter) and her brother the FSM's life insurance beneficiaries and the applicant was to receive her father's retirement benefits (SBP).

9.  Public Law 92-425, the SBP, enacted on 21 September 1972, 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.  Elections are made by category, not by name.  Changes in SBP options are not authorized except in specific instances or authorized by law.

10.  Public Law 95-397, the Reserve Component SBP, 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.

11.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act, enacted 8 September 1982, established SBP coverage for former spouses of retiring members.

12.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the Uniform Services Former Spouses 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 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 or as part of a proceeding of divorce.

13.  Department of Defense Management Regulation, paragraph 300101, states that entitlement to retired pay terminates on the date of the retiree's death.

DISCUSSION AND CONCLUSIONS:

1.  The FSM elected spouse and children coverage based on his full retired pay with option C (immediate coverage) in 1989.  The applicant and the FSM were divorced in December 2005.

2.  The applicant contends that even though they were divorced the FSM wanted her to have his retirement benefits upon his passing and that they both believed since he had elected her as the RCSBP beneficiary that there was nothing else to do or change for her to continue as the beneficiary.

3.  The FSM died on 5 December 2008, prior to attaining age 60 and any entitlement to military retired pay terminated effective the date of his death since only a retiree can receive this pay.  However, the retiree may opt for [an insurance plan of sorts] in SBP, life insurance, etc. as a replacement for lost retired pay.

4.  By law, the FSM was required to enroll the applicant for former spouse RCSBP coverage within 1 year of their divorce if it was his intent to do so.  However, there is no independent evidence showing he ever intended to submit or attempted to submit such an enrollment request.  There also is no evidence that he lacked the capacity to understand the enrollment process in the year after their divorce.

5.  Regrettably, in view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100030282



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100030282



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1