IN THE CASE OF:	  

		BOARD DATE:	    15 November 2011

		DOCKET NUMBER:  AR20110005696 


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, the former spouse of a deceased former service member (FSM), requests entitlement to payment of the Reserve Components Survivor Benefit Plan (RCSBP)/Survivor Benefit Plan (SBP) annuity of her deceased
ex-husband effective the day following the date of his death.

2.  The applicant states she has been told many times by the local National Guard active duty personnel that she is entitled to receive these benefits.  She states she is sure the FSM intended for her to receive these benefits.  She also states the FSM informed her on several times after their separation and divorce that she was entitled to these benefits.  She further states she is entitled to 12 years of back pay.

3.  The applicant provides:

* their separation agreement
* the FSM's DD Form 1883 (SBP Election Certificate)
* a DARP Form 3856 (Reserve Component (RC) Supplemental SBP Election Certificate)
* their marriage certificate showing they married in December 1965
* the FSM's Certificate of Death
* an OTAGNC [Office of the Adjutant General, North Carolina] Form Letter 1883-2-R (Spouse SBP Counseling Letter/Statement)
* an RCSBP Estimated Cost at Age 60 analysis

* an OTAGNC Form 1883-I-R (Signature Verification of Required Document Counseling
* extracts from magazine articles about the SBP and RCSBP

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 served on active duty from 1966 to 1968.  He enlisted in the Army National Guard in 1975 and he transferred to the Retired Reserve in September 1995.  The applicant and FSM divorced in 1997.  The FSM remarried after their divorce.  He would have reached age 60 in September 2005; however, he died on 22 March 1999.

3.  The various documents submitted by the applicant include:

   a.  The separation agreement showing the applicant was to be left as the "beneficiary of his National Guard Retirement fund."

   b.  The DD Form 1883, dated 7 February 1995, that lists the applicant as the spouse.  The FSM elected to participate in the RCSBP for immediate spousal coverage.  Both the applicant and the FSM signed it on 7 February 1995.
   
   c.  The FSM's Certificate of Death that lists the FSM's surviving spouse as
D____ H____, not the applicant.

4.  The Defense Finance and Accounting Service (DFAS) indicates the FSM's Certificate of Death is available and that his spouse at the time of death is the designated SBP beneficiary.

5.  Public Law 92-425, the SBP, enacted 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.
6.  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.  

7.  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.  Title 10, U.S. Code, chapter 73, provides that a spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are:

	a.  if the service member voluntarily elects to provide a former spouse annuity;

	b.  the election is made in order to comply with a court order; or

	c.  the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment.

8.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that she didn't know she had to do anything.  Her former husband frequently stated he intended for her to receive the RCSBP/SBP benefits.

2.  The wording in the divorce decree, "beneficiary of his National Guard Retirement fund" does not make it entirely clear that they had agreed that the former spouse was to be the RCSBP/SBP beneficiary.  The phrasing could also mean simply a portion of the FSM’s retired pay.  However, even presuming it to refer to the SBP, the FSM did not change his SBP election to former spouse coverage.   
3.  Also, the law provided a mechanism whereby the applicant could have obtained a "deemed election" of former spouse coverage if she believed the phrase referred to the SBP, and she failed to take the necessary steps to request former spouse coverage.  Whether or not she knew these applicable details, her divorce attorney should have known.

4.  The FSM's wife at the time of his death was and is the lawful designated SBP beneficiary.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20110005696



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ABCMR Record of Proceedings (cont)                                         AR20110005696



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