BOARD DATE:	  22 November 2011

		DOCKET NUMBER:  AR20110000628 


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, that the records of her deceased former spouse, a former service member (FSM), be corrected to show that he changed his category of participation in the Reserve Component Survivor Benefit Plan (RCSBP) from spouse to former spouse coverage.

2.  The applicant states:

	a.  Pursuant to the court ordered Final Judgment Granting Dissolution of Marriage, which incorporated the marital settlement agreement, she (the applicant) is entitled to receive the annuity selected by her former spouse upon his death.

	b.  The FSM died on 20 March 2010 and she then learned that he had not made the election change within 1 year of the divorce decree which is necessary for her to receive benefits under the RCSBP.

	c.  She did not know she needed to make the election.

	d.  It was her understanding that it was the FSM's responsibility to prepare whatever documents were necessary.

	e.  The Marital Settlement Agreement incorporated into the court order states "The husband agrees to execute whatever documents are necessary to designate the wife as such beneficiary."

	f.  She was "scared" to contact the Army without the FSM's knowledge.

	g.  She is 63 years old and was counting on the FSM's income to help support herself.

	h.  If the Army does not correct this error, it will be punishing her for the FSM's failure to do what he agreed to do before the court.

3.  The applicant provides no additional evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's request be expedited.

2.  Counsel states:

	a.  The applicant suffers from anxiety, insomnia, chronic pain, and depression.

	b.  She is currently working part-time to support herself because she is unable to find full-time work.

	c.  There is an ongoing civil action in the Probate Courts of Palm Beach County, Florida, regarding the FSM's estate as a result of his failure to execute the proper forms to ensure the applicant's receipt of benefits under the SBP (among other issues).

	d.  The parties involved would be able to avoid incurring additional attorneys' fees and could avoid wasting court resources if this matter is resolved.

3.  Counsel provides the applicant's DD Form 149 (Application for Correction of Military Records) signature page, the FSM's Certificate of Death, and the Final Judgment Granting Dissolution of Marriage between the applicant and the FSM.

CONSIDERATION OF EVIDENCE:

1.  With 7 years, 11 months, and 1 day of prior service, the FSM enlisted in the New York Army National Guard (NYARNG) on 25 March 1962.  He remained a member of the NYARNG through reenlistments and extensions.



2.  On 25 April 1980, the FSM was issued a Notification of Eligibility for Retired Pay at age 60 (20-Year Letter).

3.  On 21 May 1980, the FSM completed a DD Form 1883 (Survivor Benefit Plan Election Certificate) indicating he was married and had dependent children.  He elected to participate in the SBP for spouse only coverage, full base amount.

4.  The FSM was discharged from the NYARNG on 10 July 1981 and was transferred to the Retired Reserve.  He and his spouse divorced on 29 July 1985. There is nothing in the Final Decree regarding his SBP benefits.

5.  On 13 August 1985, the FSM notified the U.S. Army Reserve Component Personnel and Administration Center (RCPAC) of his divorce.  On 14 October 1985, he completed another DD Form 1883 electing the children only coverage.  On 6 November 1985, RCPAC advised him that it was not necessary to file a new DD Form 1883.  He was told his previous election certificate along with his divorce decree would suffice, with spouse coverage being suspended until such time as he remarried.

6.  The FSM married the applicant on 29 September 1989.  On 21 August 1992, during a period of open enrollment, the FSM submitted a DARP Form 3855 (Open Enrollment Election (1 April 1992 – 31 March 1993) Certificate, Supplement SBP Options B & C, RCSBP) electing to change his coverage from children only to spouse only.  He listed the applicant as his spouse.

7.  On 28 February 1996, the FSM applied for retired pay, completed a DD Form 2656 (Data for Payment of Retired Personnel), and elected to participate in the SBP for spouse only coverage, full base amount.

8.  On 25 September 1996, the FSM reached age 60.  He and the applicant divorced on 9 April 1998.  The portion of the Final Judgment Granting Dissolution of Marriage pertaining to the FSM's SBP benefits reads "as a result of the husband's service in the U.S. Army, the husband presently receives retirement benefits under the SBP.  The current benefit is $489.95.  The husband shall continue to receive his retirement pay as it is adjusted from time to time for the remainder of his life.  The annuity selected by the husband under the SBP provides for 55 percent of the same to be paid to the husband's spouse upon his death.  The amount of the annuity payment to be received by the husband's spouse upon his death may be adjusted from time to time, including but not 
limited to an adjustment when the husband's spouse reaches age 62 and 

becomes eligible for social security.  The husband agrees to designate the wife the sole beneficiary of his SBP upon his death.  The husband agrees to execute whatever documents are necessary to designate the wife as such beneficiary."

9.  The available records do not show his SBP election was changed from spouse only to former spouse as ordered in the Final Judgment Granting Dissolution of Marriage.  The applicant did not make a deemed election request.

10.  The FSM died on 20 March 2010.  His death certificate shows his marital status as divorced.

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 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.

14.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election.  If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made.  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 1 year of the date of the court order or filing involved.  When SBP is court-ordered, the former spouse may make a deemed election within 1 year of the divorce.  When SBP is not court-ordered, the retiree may make a written request to change spouse coverage to former spouse coverage voluntarily.  Otherwise, participation remains in a suspended status until the retiree gains another spouse, who will become the beneficiary after completing one year of marriage unless the retiree desires not to resume spouse coverage, which is an option.  




DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to correct the FSM's record to show he elected to change his SBP coverage from spouse only to former spouse coverage in conjunction with their 9 April 1998 divorce was carefully considered and found to have merit.  

2.  By law, SBP may be awarded to a former spouse incident to a proceeding of divorce.  If the FSM does not voluntarily request former spouse coverage, a deemed election may be made by the former spouse within 1 year of the divorce. 

3.  The evidence of record indicates that the applicant failed to make a request for a deemed election within 1 year of the divorce and the FSM also failed to request a change.  The evidence confirms that former spouse SBP coverage was directed in the divorce decree.  It is also clear that the applicant believed the FSM had executed the necessary documents for her to receive SBP premiums upon his death as ordered by the court.  Further, the FSM's death certificate indicates he was divorced at his death so there is no one with a greater interest in the SBP to defeat the applicant's equitable interest.

4.  In view of the foregoing the applicant's request should be granted. 

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 SBP election from spouse to former spouse coverage on 10 April 1998; and

	b.  paying the applicant an annuity based upon the FSM’s election to participate in the SBP with former spouse coverage, effective the day after his death, if otherwise qualified.



      _______ _ 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)                                         AR20110000628



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ABCMR Record of Proceedings (cont)                                         AR20110000628



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