IN THE CASE OF:	  

		BOARD DATE:	  12 April 2012

		DOCKET NUMBER:  AR20110015666 


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 reconsideration of a previous application to correct the records of the FSM, by amending his DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate) to show he elected Option C (Immediate Coverage), retroactive within the time prescribed by law.

2.  She states she is providing the following new arguments to support her request.

	a.    She and the FSM were married for 17 out of the 20 years he was affiliated with the military and earned credits toward his retirement.    

	b.  Public Law (PL) 92-425, states an election, once made, is permanent and irrevocable, except as provided for by law.  The exception provided by law in this case is the divorce decree.  The final decision was a part of the FSM's military records and had not been applied to the SBP by a retirement counselor.

	c.  She states, "The argument on page 2, item 6 and repeated on page 4, item 3 of the previous Record of Proceedings, that the applicant was not married does not apply to me, because page 2 item 3 states that our divorce was final       10 March 1994.  That information would only apply if Joe had remarried."

	d.  The fact the Supreme Court of the State of Montana makes no mention of the SBP, only means that the SBP was not appealed in the divorce and there was no need to address the issue.  It is also implied that the SBP was part of the FSM's retired pay as mentioned in the settlement agreement.  

	e.  The settlement document indicates she is entitled to receive his retirement.  She contends the vehicle to deliver the FSM's retirement is through the SBP, which was not contested in the Supreme Court appeal and, therefore, not mentioned.  Two of the three reasons cited on page 4 of the previous Record of Proceedings rely on this concept.

   f.  Item 2 of page 4, under the Discussion and Conclusions section, refers to entitlement to military retired pay terminating effective the date of the FSM's death, but fails to address the portion of PL 92-425 which states "except as provided by law."  
   
   g.  If, in fact, the FSM's death were the only issue, it would be the only reason necessary to deny her request; however, the remaining portions of the Discussion and Conclusions indicate that his death was not the sole reason, leaving room for interpretation and thus, the requested change in the SBP election.

   h.  On page 5, the Board states the overall merits of her case are "insufficient as a basis for correction of the records of the individual concerned."  This comment also indicates that it is possible to award this retirement if more evidence is submitted.  This lends credence to her previous argument that the reason in item 2 of page 4, in and of itself, is neither definitive nor conclusive. 
   
   i.  If the information she has provided is not sufficient, please let her know what additional information is needed, such as a federal court order.
   
   j.  The FSM's retirement was considered part and parcel of the property division outlined in and part of the District Court decision.  Therefore, it should have been reflected in the SBP form.

3.  The applicant provides:

* A copy of Army Board for Correction of Military Records (ABCMR) Docket Number AR20090021634, dated 1 July 2010
* An SGLV 8286 (Servicemen's Group Life Insurance Election and Certificate), dated 18 July 1991
* A DD Form 93 (Record of Emergency Data), dated 18 July 1991
* Three letters
* The FSM's Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter), dated 1 October 1997
* A memorandum, subject:  Twenty-Year Letter and Survivor Benefit Counseling 
* An Army National Guard (ARNG) Retirement Points History Statement, prepared 22 September 2009

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20090021634, on 1 July 2010.

2.  The applicant provides new arguments which will be considered by the Board in review of her case. 

3.  The FSM's record shows he was born on 7 April 1947 and enlisted in the U.S. Marine Corps (USMC) Reserve on 28 August 1967.  He married the applicant on 2 September 1967.  

4.  On 1 December 1984, he was promoted to the grade of First Sergeant/E-8 in the USMC Reserve.  

5.  The FSM was discharged from the USMC Reserve on 3 March 1988, and after a break-in-service, he enlisted in the ARNG on 18 July 1991. 

6.  On 10 March 1994, the Supreme Court of the State of Montana filed document number 93-4xx.  This document shows the appeal arose from the dissolution of the couple's 26-year marriage.  Following a hearing on 22 April 1993, the district court issued its findings of fact, conclusions of law, and decree on 15 June 1993.  

7.  Page 5 of Supreme Court of the State of Montana document number 93-4xx, shows, in part:

In the present case, the District Court also awarded [the applicant]
45 percent of [the FSM's] military pension, which he will only be eligible to receive if he completes five more years of service in the Reserves.  The Court noted that [the applicant] receives 45 percent of nothing if [the FSM] fails to complete his 20-year service requirement.

8.  The applicant's attorney wrote a letter to the Department of Military Affairs, Helena, MT on 24 January 1995.  This letter shows an inquiry was made on the FSM's eligibility to receive military retired pay.  It was her attorney's 


understanding that all she had to do in order to ensure the enforcement of her rights to a 45 percent share of his pension if he became eligible for it was to forward a copy of the couple's divorce decree.  This letter shows that he attached a copy of the decree with the letter.  

9.  On 1 October 1997, the FSM's Twenty-Year letter was prepared and forwarded to him for information and action.  This letter states, in part:

This is to notify you that, having completed the required years of service, you will be eligible for retired pay upon application at age 60 in accordance with the provision of Title 10, U.S. Code, Chapter 67.  Your eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of creditable service performed unless it resulted from fraud or misrepresentation on your part.

10.  Accompanying the Twenty-Year Letter was a Survivor Benefit Counseling with a suspense date of 1 December 1997.  This letter stated, in part:

Now that you are eligible for retirement pay at age 60 you have the option of providing income for your survivors in the event of your death.  This is an important decision for you and your family.  Your unit has been furnished copies of the DD Form 1883 (Survivors Benefit Plan Election Certificate).  You, your spouse and the unit retirement counselor must set [sic] down and discuss the available options.  If you elect option A, and you are married, your spouse must concur by signing the back of the DD Form 1883.

11.  The FSM's records contain a copy of the DD Form 1883, which he completed on 12 December 1997 and was processed by his unit on 
20 December 1997.  This form shows he stated he was not married and did not have any dependent children.  He also indicated that he did not desire any coverage and chose Option A (I decline to make an election at this time – I will remain eligible to make an election for coverage at age 60).  

12.  The DD Form 1883 also contains a section which includes the note:  "The decision you make with respect to participation in the SBP is a permanent irrevocable decision.  Please consider your decision and its effect very carefully."  The reverse side of the form contains an additional note:  "If retiree does not elect Option B or C at this time, and should die before age 60, the survivors will not receive benefits under PL 95-397."  He signed both sides of the form on 
12 December 1997. 
13.  On 7 April 1998, he was honorably discharged from the ARNG and transferred to the Retired Reserve.  He had completed 27 years, 2 months, and 25 days total service for pay.  His total service for retired pay showed he completed 20 years, 8 months, and 19 days total service for retired pay.  

14.  On 22 March 2000, the applicant submitted a DD Form 2293 (Application for Former Spouse Payment from Retired Pay) to the Defense Finance and Accounting Service (DFAS), Cleveland, OH.  

15.  A letter from DFAS, Cleveland, dated 1 May 2000 shows their office received her application and were not able to determine at that time if she and the FSM were married for at least 10 years while he performed 10 years of creditable military service.  On 21 June 2000, DFAS informed the applicant that all requirements were met and no further action on the applicant's part was necessary at the time.  

16.  DFAS also informed the applicant that the FSM was not receiving retired pay at the time.  It was noted:  "If the member has met all the necessary requirements, including at least 20 years of service, he may apply for retirement benefits at age 60."  The letter also stated, if the divorce specified that she was to be designated as a former spouse beneficiary for the SBP, she must make a deemed election within one year of the date of the divorce.  

17.  A State of Montana Certificate of Death shows the FSM's date of death as 29 August 2004.  The certificate indicates he was 57 years of age at the time of his death and was divorced with no surviving spouse. 

18.  Records at the U.S. Army Human Resources Command – St. Louis showed that the FSM never applied for retired pay.

19.  Beginning in March 2000, the applicant submitted several requests to DFAS for the FSM's retirement benefits and SBP through her Member of Congress.  The various responses concluded that enrollment in the SBP was limited to those Soldiers who had attained eligibility for retirement and should be accomplished within 90 days of the Soldier's receipt of the offer.  The FSM informed the Army that he was not married at that time and therefore did not desire to enroll in the SBP.

20.  The responses to her request for 45 percent of the FSM’s retired pay concluded that the FSM died before attaining age 60 and therefore, he had not received any retirement pay.  As a result, the applicant was not able to benefit from the FSM's military service. 

21.  Public Law 95-297, dated 30 September 1978 established the Reserve Component SBP (RCSBP) to offer survivor protection during gray area service (between the time a member qualifies for retirement and the time the member turns age 60 and can then receive retired pay).  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; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  Under the law in effect at the time, a member was required to make the RCSBP election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 (Twenty-Year Letter) or else wait until he/she applied for retired pay at age 60 and elect to participate in the standard SBP.  

22.  Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60, and the default election when an election form was not submitted or is not on file is Option C.  This law is applicable to cases where the 20-year letter was issued after 1 January 2001.  The law provided no retroactive provisions for members who received a 20-Year Letter prior to 1 January 2001.  

23.  Title 10, U. S. Code, section 12731(a) states that a person is entitled, upon application, to retired pay if the person is at least 60 years of age, has performed at least 20 years of qualifying service, and the last eight years of qualifying service have been performed while a member of a Reserve Component.

DISCUSSION AND CONCLUSIONS:

1.  The applicant provided her divorce decree, which indicated she was awarded 45 percent of the FSM’s [future] retired pay.  The divorce decree did not specifically order the FSM to provide former spouse SBP coverage, and it cannot not be implied that the SBP was part of the retired pay.  Non-regular retired pay and RCSBP are two separate programs.  An award of an interest in future retired pay to a former spouse in a divorce decree does not constitute an award of SBP or RCSBP benefits as a former spouse. 

2.  SBP elections are made by category, not by name.  Since there is no evidence to show the applicant was awarded the SBP as a former spouse by the divorce court, even if the FSM reached the age at which he could have applied for retired pay, there would have been no evidence to warrant correcting the records to show she is the FSM’s former spouse SBP beneficiary.

3.  It appears the applicant’s belief that the FSM only needed to complete 
20 years of qualifying service with no mention of reaching age 60 arose from the portion of the divorce decree which states, in part, “the District Court awarded [the applicant] 45 percent of the FSM's military pension, which he will only be eligible to receive if he completes five more years of service in the Reserves.  [The applicant] receives 45 percent of nothing if the FSM fails to complete his 
20-year service requirement."

4.  It is acknowledged that the divorce decree awarded the applicant 45 percent of the FSM’s retired pay.  However, by federal law, non-regular retired pay is only an entitlement if the member is at least age 60, has performed at least 20 years of qualifying service, and the member applies for it.  The evidence of record shows the FSM passed away at the age of 57.  As a result, he had not reached the age required by law, and therefore, was neither eligible to apply for or receive non-regular retired pay.  As such, there is no retired pay from which to pay the applicant her portion as outlined in the divorce decree.

5.  The applicant contends that she was required to sit down with the FSM and a Reserve counselor prior to the FSM making his RCSBP election.  The portion of the Twenty-Year letter which the applicant makes reference to states "you, your spouse and the unit retirement counselor must set [sic] down and discuss the available options.  If you elect option A, and you are married, your spouse must concur by signing the back of the DD Form 1883."  This statement applied to a service member who was married at the time of election.  

6.  The evidence of record shows that at the time the FSM made his RCSBP election on 12 December 1997 he was not married.  He chose to decline making an RCSBP election until age 60.  Under the law in effect at the time, neither spousal notification nor concurrence was required for a Reservist to delay an RCSBP election until age 60.  The law requiring spousal concurrence with a non-participation election was not effective until 1 January 2001, and this law did not provide retroactive provisions for members who received their Twenty-Year Letter prior to this effective date.  Once again, any spousal notification or concurrence provision did not apply to the FSM because he was not married at the time he made his election.

7.  The FSM did not show any intent to participate in the RCSBP prior to reaching age 60, and the applicant has not shown any entitlement to RCSBP benefits by virtue of her divorce.  An award of an interest in retired or non-regular retired pay is not an award of an interest as a former spouse beneficiary for SBP or RCSBP.

8.  Accordingly, the applicant is not entitled to receive any SBP benefits as an exception to the governing law or policy. 

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 to amend the decision of the ABCMR set forth in Docket Number AR20090021634, dated 1 July 2010.




      _______ _   _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)                                         AR20110015666





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ABCMR Record of Proceedings (cont)                                         AR20110015666



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