BOARD DATE:	  20 October 2011

		DOCKET NUMBER:  AR20110006558 


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 correction of the FSM's record to show he changed his Reserve Component Survivor Benefit Plan (RCSBP) election from spouse to former spouse coverage.

2.  The applicant states she divorced the FSM in May 1995 and the FSM was unaware of the requirement to change his designated SBP beneficiary from spouse to former spouse.

	a.  The FSM started receiving his Army retired pay in 2000 and he made monthly payments into the SBP.

	b.  During a discussion with his lawyer approximately 15 years after their divorce, the FSM made it clear that he wanted his former spouse to receive survivor benefits.

3.  The applicant provides copies of:

* their divorce decree
* the FSM's Defense Finance and Accounting Service (DFAS) CL 7220/148 (Retiree Account Statement)
* the FSM's Certificate of Death
* three letters
* documentation from the FSM's lawyer


CONSIDERATION OF EVIDENCE:

1.  The FSM:

	a.  had prior honorable active duty enlisted service in the U.S. Navy from
27 January 1959 through 1 November 1968;

	b.  enlisted in the Army National Guard of the United States and Rhode Island Army National Guard (RIARNG) on 15 October 1971; and

	c.  was issued a memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60, dated 31 December 1985.

2.  A DD Form 1883 (Survivor Benefit Plan Election Certificate) shows the FSM was born on 1 July 1940, he indicated he married Louise F. [the applicant] on
11 May 1966, she was born on 4 September 1942, and they had dependent children.

	a.  The FSM elected spouse only coverage based on the full amount of retired pay with RCSBP Option B (Age 60).

	b.  Section V (Additional Information), item 18 (Is this the only election of coverage you have submitted under the new Survivor Benefit Plan?), shows the FSM placed an "x" in the "Yes" block.

	c.  The FSM, the applicant, and a witness each placed their signatures on the document on 7 March 1986.

3.  Orders 119-4, issued by Headquarters, State Area Command, Rhode Island National Guard, Providence, RI, dated 12 June 1986, discharged the FSM from the RIARNG on 28 April 1986 and assigned him to the U.S. Army Reserve (USAR) Control Group (Retired), St. Louis, MO, effective 28 April 1986.

4.  A DD Form 2656 (Data for Payment of Retired Personnel), dated 15 January 1999, shows the FSM designated the applicant as his beneficiary for unpaid retired pay.

5.  Orders P-04-302395, issued by the USAR Personnel Command, St. Louis, dated 4 April 2000, placed the FSM on the Army of the United States retired list, effective 1 July 2000.


6.  In support of this application, the applicant provides:

	a.  a State of Rhode Island and Providence Plantations, Family Court Final Judgment, that shows the applicant and FSM were divorced on 22 May 1995.
It shows the applicant, because of other benefits conferred upon her, shall be allowed to waive any interest in and to the FSM's pensions.  The document makes no mention of the FSM's RCSBP.

	b.  a DFAS-CL 7220/148, dated 4 January 2010, pertaining to the FSM's retired pay that shows his SBP coverage was "spouse only" with full base amount.

		(1)  It shows the applicant's date of birth (DOB) is shown in the SBP Coverage section under "Spouse DOB."

		(2)  The FSM had paid 113 months toward his 360 months of paid-up RCSBP coverage.

		(3)  The applicant is also listed as the FSM's beneficiary for 100% of unpaid retired pay.

	 c.  a State of Rhode Island and Providence Plantations, Certificate of Death, that shows the FSM died on 30 October 2010 and he was divorced at the time of his death.

	d.  a letter from DFAS to the applicant, dated 3 January 2011, that informed her that records on file fail to show DFAS received a request to change the RCSBP election from spouse to former spouse and the divorce decree did not show she was awarded the FSM's RCSBP.  Consequently, DFAS denied her application for an RCSBP annuity.

	e.  A letter from the FSM's lawyer to the Retirement Benefits Counselor, Command Readiness Center (RIARNG), Cranston, RI, dated 18 March 2011, in which he advised that he represented the FSM for several years prior to his death.  He states that, despite the FSM's serious medical conditions, he was acutely aware of his personal affairs and matters of his estate, particularly about what he was "leaving" and to whom upon his death.  The FSM had SBP costs withheld from his retired pay for many years and he specifically wanted the applicant to remain his legal beneficiary for his SBP benefits.

	f.  An affidavit from the FSM's lawyer, Mr. Philip M. S----, Jr., to the ABCMR in which he declared he represented the FSM in matters of his estate for 


approximately 10 years prior to his death; the FSM was aware he was paying monthly SBP premiums, but was unaware of the requirement to change his beneficiary designation from spouse to former spouse; the FSM did not remarry and there is no record of marriage pertaining to the FSM in the State of Rhode Island vital records from the years 1995 through 2010.  Mr. S--- attests that the FSM intended that the applicant be the beneficiary for his Army retirement benefits upon his death.

7.  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.  Retiring members and spouses were to be informed of the SBP options and effects.

8.  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.

9.  Title 10, U.S. Code, section 1450 (Payment of annuity:  beneficiaries), in pertinent part, states, a monthly annuity under section 1451 of this title shall be paid to the person's beneficiaries under the Plan, as follows:  to the eligible surviving spouse or eligible former spouse.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the records of the FSM should be corrected to show his participation in the RCSBP with former spouse coverage because the FSM failed to change the designated beneficiary category from spouse to former spouse SBP coverage within 1 year of the date of the divorce.

2.  Records show that on 7 March 1986, after having received notification of his eligibility for retired pay at age 60, the FSM elected SBP with spouse coverage (full amount) to begin on his 60th birthday.
3.  The applicant and FSM divorced on 22 May 1995.

	a.  The evidence of record shows the FSM maintained SBP spouse coverage following his divorce from the applicant, with his former spouse's DOB listed as that of his designated beneficiary for SBP benefits.

	b.  The FSM began receiving Army retired pay in July 2000 and he had SBP costs deducted from his retired pay until his death on 30 October 2010.

	c.  There is no evidence the FSM remarried after 22 May 1995 and records show the FSM was divorced at the time of his death.

4.  DFAS confirmed that an SBP annuity has not been paid to the applicant because neither the FSM nor the applicant notified DFAS within 1 year from the date of their divorce to change the FSM's SBP beneficiary to former spouse.

5.  It is logical to presume that if the FSM did not intend for his former spouse to receive the SBP annuity, he would have notified DFAS to stop deducting SBP costs from his Army retired pay after they divorced.  However, the evidence of record shows the FSM did not do this.

6.  Despite the fact that the FSM failed to take appropriate action to effect a change in his SBP election to former spouse, the applicant's request merits favorable consideration.  Therefore, the FSM's records should be corrected to show that his SBP beneficiary category was changed from spouse to former spouse coverage, effective 23 May 1995.  As such, the applicant will be entitled to SBP based on former spouse coverage beginning the date of the FSM's death.

BOARD VOTE:

___x_____  ___x_____  __x______  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 showing the FSM's SBP beneficiary category was changed to former spouse coverage on 23 May 1995.

2.  As a result of the above correction, DFAS should pay the applicant an annuity based upon the FSM's participation in the SBP with former spouse coverage, full base amount, retroactive to 31 October 2010, the day after his death.

3.  The applicant is advised that she may contact the nearest Retirement Services Officer (RSO) for additional information and assistance regarding her eligibility for Army benefits.  A listing of RSOs by country, state, and installation is available on the Internet at:  http://www.armyg1.army.mil/RSO/rso.asp.



      __________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)                                         AR20110006558



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ABCMR Record of Proceedings (cont)                                         AR20110006558



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