IN THE CASE OF:	  

		BOARD DATE:	  1 February 2011

		DOCKET NUMBER:  AR20110000928 


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 former spouse, a former service member (FSM), to show he timely changed his Reserve Component Survivor Benefit Plan (RCSBP) coverage from "spouse" to "former spouse" coverage at the time of their divorce and payment of the SBP annuity based on his death.

2.  The applicant states that the FSM completed a DA Form 4240 (Data for Payment of Retired Personnel) on 16 January 1987 and he requested her to be the beneficiary of his annuity.  He also stated in his will that she was to receive the compensation due.  He also verbally expressed his wishes for her to receive the money.  The form was filled out after the 1-year anniversary of their divorce.  He was unaware of any deadlines. 

3.  The applicant provides:

* a statement from her daughter
* the FSM's "Last Will and Testament"
* a DD Form 1883 (Survivor Benefit Plan Election Certificate)
* a DA Form 4240
* the FSM's Certificate of Death
* a letter from the Defense Finance and Accounting Service (DFAS)
* a Standard Form 1174 (Claim for Unpaid Compensation of Deceased Member of the Uniformed Services)
* their Divorce Decree
* a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 1 April 1927 and he initially entered military service on 1 April 1945.  He married Pauline, the applicant, on 18 June 1954.

2.  The FSM's available records show he served as a commissioned officer in the Mississippi Army National Guard (MSARNG) in several staff and leadership positions and he was promoted to Brigadier General (BG) on 18 August 1980.

3.  On an unknown date, the MSARNG issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter would have notified him that he had completed the required years of service and he would be eligible for retired pay upon application at age 60.

4.  On 19 August 1979, the FSM completed a DD Form 1883.  He indicated he was married to the applicant and he had dependent children.  He further elected "spouse and children" coverage, full amount, option C (immediate coverage), under the RCSBP.

5.  On 28 June 1983, the MSARNG published Orders 135-19 honorably discharging the FSM from the ARNG and transferring him to the Retired Reserve, effective 18 August 1983.

6.  On 18 July 1984, the FSM and applicant entered into a written agreement for settlement of property rights between them.  Their agreement stipulated in paragraph 11 that the FSM had previously executed a joint survivorship retirement with the military, and if he was permitted to do so, he would leave the wife's name on as a beneficiary thereof in the event of death.

7.  On 29 October 1984, the FSM and applicant were divorced.  Their aforementioned agreement, as modified, was made a part of their final divorce.

8.  There is no indication the FSM requested a change to his RCSBP coverage to "former spouse" coverage within 1 year of his divorce and there is no indication his spouse, the applicant, submitted a request for deemed election within 1 year of their divorce.

9.  On 16 January 1987, the FSM completed a DA Form 4240.  He indicated he was single and he had no dependent children.  He further elected "former spouse" coverage and entered the applicant's name, social security number, and her date of birth.

10.  On 1 April 1987 (his 60th birthday), the FSM was placed on the retired list in his retired grade of BG.

11.  On 6 March 2010, the FSM died.  The Certificate of Death shows he was divorced at the time of his death.

12.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP 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. An election, once made, was irrevocable except in certain circumstances.  Since its creation, it has been subjected to a number of substantial legislative changes.

13.  Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60.  Three options were 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; or (c) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  Once a member elects either option B or option 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; the options automatically roll into SBP coverage.

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.  Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within one year of the court order requiring SBP to be established on the former spouse’s behalf provided the member agreed to provide coverage.

16.  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.

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the records of her deceased former spouse should be corrected to show he timely changed his SBP coverage from "spouse" to "former spouse" coverage pursuant to their divorce decree and she should be paid the SBP annuity based on his death. 

2.  The evidence of record shows that the FSM executed a DD Form 1883 on    19 August 1979, electing "spouse and children" RCSBP coverage under option C, immediate coverage.  He was honorably discharged from the ARNG and he was transferred to the Retired Reserve on 18 August 1983.

3.  The FSM and applicant were divorced on 18 July 1984.  Their divorce decree stipulated that he would leave the applicant's name as a beneficiary of his previously executed joint survivorship retirement with the military in the event of his death.

4.  SBP and/or RCSBP elections are made by category, not by name.  Once the FSM and the applicant were divorced, she was no longer his spouse.  Nevertheless, he was required to make a former spouse election, if permitted, as stipulated in their divorce decree.  He did not do so within 1 year of their divorce. Additionally, the applicant appears not to have been aware of the requirement to deem the election.

5.  However, prior to his 1 April 1987 retirement, the FSM submitted a DA Form 4240 on 16 January 1987, wherein he elected former spouse coverage.  He 
continued to pay SBP premiums through the date he died and his Certificate of 
Death shows he was divorced at the time of his death.  It appears that his intent was to make the RCSBP coverage change from "spouse and children" to "former spouse" coverage but neither he nor the applicant were aware of the 1-year rule. As such, his record should be corrected to show he did so in a timely manner and his request was timely received and processed by DFAS.

6.  However, during the period October 1984 to November 1985, former spouse coverage was paid under insurable interest provisions, which was more expensive.  Therefore, some additional premiums may due.  His records should then also be corrected to show later he requested former spouse coverage under spouse coverage provisions.

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 he changed his RCSBP coverage from "spouse and children" coverage to "former spouse" coverage" within 1 year of their divorce on 29 October 1984;

	b.  showing he requested to change his RCSBP coverage to RCSBP under spouse coverage provisions on 9 November 1985;

	c.  showing his requests were timely received and processed by the appropriate DFAS office; and

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



      __________XXX____________
       	   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)                                         AR20110000928



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ABCMR Record of Proceedings (cont)                                         AR20110000928



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