IN THE CASE OF:	  

		BOARD DATE:	  27 September 2011

		DOCKET NUMBER:  AR20110004538 


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 former service member (FSM), to show he applied for retired pay upon reaching age 60 and to show an election of former spouse coverage under the Reserve Component Survivor Benefit Plan (RCSBP). 

2.  She states the FSM refused to take his military retirement because she was to get 45 percent (%) of the benefit as stated in their divorce decree.  She had no control over the circumstance.

3.  She provides:

* a self-authored statement
* a DD Form 2656-7 (Verification for Survivor Annuity)
* direct deposit and withholding forms
* a Certificate of Marriage
* Findings of Fact, Conclusions of Law and Judgment of Divorce
* a Marital Settlement Agreement 
* a Qualified Domestic Relations Order (QDRO)
* an Amended QDRO
* a Petition, Stipulation and Order Amending Judgment Affecting Family
* a DFAS-IN Form 0-1767 (Application for Direct Payments from a Member's U.S. Army Retired Pay)
* an Original Certificate of Death
* an ARPC Form 249-E (Chronological Statement of Retirement Points)

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM was born on 12 December 1946.  His ARPC Form 249-E shows he enlisted in the Army National Guard (ARNG) on 17 August 1967.  He continued his service in the U.S. Army Reserve (USAR) beginning on 17 August 1974, where he served until he retired from an active status on 20 May 1997.  He completed 21 years of service qualifying for retirement.

3.  On 11 August 1992, he was notified he had completed the required years of service to receive retired pay on application at age 60.  He was also notified of his entitlement to participate in the RCSBP, that he had 90 calendar days to submit his election, and that if he did not submit an election within 90 days he would not be allowed to obtain the coverage until he applied for retired pay at age 60.  

4.  The record is void of documentation showing he submitted an RCSBP election.

5.  The record is void of documentation showing he applied for retired pay upon reaching age 60.

6.  The Defense Finance and Account Service (DFAS) has no record of the FSM.

7.  The applicant provides a Certificate of Marriage showing she married the FSM on 2 December 1974.  She provides a Findings of Fact, Conclusions of Law and Judgment of Divorce showing they were divorced on 22 September 1992.  

8.  The Amended QDRO she provides shows, in effect, she was to receive 45% of the FSM's monthly military pension and that she was to be deemed the surviving spouse in the event of his death and a spouse as far as any survivor benefits provisions were concerned.
9.  The court was silent on the issue of whether the FSM was required to participate in the RCSBP and name the applicant as the beneficiary.

10.  The applicant provides an Original Certificate of Death showing the FSM died on 26 December 2010. 

11.  Army Regulation 135-180 (Army National Guard and Army Reserve - Qualifying Service for Retired Pay - Nonregular Service) states it is the responsibility of each qualified individual to submit his or her application for retired pay. 

12.  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.

13.  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 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; or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.

14.  Public Law 95-397 further provided 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 the 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.

15.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.

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.  
DISCUSSION AND CONCLUSIONS:

1.  The applicant provided an Amended QDRO showing she was awarded 45% of the FSM’s [future] retired pay and that she was to be deemed a spouse as far as any survivor benefits provisions were concerned.  However, this document does not state the FSM was required to participate in the RCSBP nor did it order him to apply for retired pay upon becoming eligible at age 60.  

2.  Retired pay is only an entitlement if the eligible member applies for it.  There is no evidence showing the FSM applied for retired pay, and based on the available documentation, it cannot be determined if he made a deliberate attempt to avoid his obligation under the terms of the divorce by failing to apply for retired pay.  He turned age 60 in December 2006, and he died in December 2010.  The applicant provides no evidence to show she attempted to resolve this issue with the FSM or through the courts during the 4 years after he turned age 60 and before his death.

3.  The burden of proof is on the applicant, and there is insufficient evidence at this time to warrant granting the relief (either receipt of the SBP annuity or a portion of the FSM’s retired pay) she requests.

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)                                         AR20110004538





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ABCMR Record of Proceedings (cont)                                         AR20110004538



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