IN THE CASE OF:	  

		BOARD DATE:	    23 February 2012

		DOCKET NUMBER:  AR20110016240 


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 the record of her deceased former husband, a former service member (FSM), be corrected to show he elected to provide her Reserve Component Survivor Benefit Plan (RCSBP) coverage as a former spouse and that she be provided an SBP annuity based on the death of the FSM.  

2.  The applicant states her former husband signed the required forms and they agreed to this election together.  She states they were together 29 years and she was with him throughout his military career.  She claims she knows the FSM would want her to receive the SBP annuity.

3.  The applicant provides the following documents in support of the application:

* Marriage License 
* Notification of Eligibility for Retired Pay (20-Year Letter)
* DD Form 1883 (SBP Election Form), dated 6 February 1992
* FSM's Divorce Decree
* Agreement Statement, dated 30 August 2000
* FSM's Death Certificate
* Defense Finance and Accounting Service (DFAS) letter, dated 14 July 2011 and related papers
* DD Form 2656-7 (Verification for Survivor Annuity), dated 23 June 2011



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 record shows the FSM entered the North Carolina Army National Guard (NCARNG) on 11 February 1966, and served until being honorably discharged on 5 January 2001 and transferred to the U.S. Army Reserve (USAR) Retired Reserve.

3.  The applicant and the FSM were married on 12 February 1968.  

4.  The record contains a 20-Year Letter, dated 13 December 1991.  This notified the FSM he had completed the required years of service necessary to qualify for retired pay at age 60.  

5.  The record contains a DD Form 1883 completed by the FSM on 6 February 1992.  This document shows the FSM elected full “Spouse Only” RCSBP coverage under option C (Immediate coverage).  The applicant was listed as his spouse on this document.  

6.  On 9 October 1996, the applicant and FSM were divorced in the General Court of Justice, District Court Division, Caldwell County, North Carolina.  The divorce decree makes no specific mention of continued SBP coverage for the applicant.  It states all matters regarding equitable distribution had been previously resolved by the parties prior to filing of the motion.  

7.  On 9 September 2001, the FSM died at the age of 54 years, 11 months, and 
29 days.  The death certificate records his status at the time of death as divorced.

8.  The record is void of any documents indicating the FSM made a former spouse RCSBP election at any time subsequent to their divorce.
9.  In 2011, the applicant applied for an SBP annuity based on the death of her former husband, and on 14 July 2011 the DFAS Chief, Retired Pay Branch, notified the applicant that a review of the FSM's record showed he never executed a DD Form 2656-1 (SBP Election) for former spouse coverage.  Since he never made this election, her request for an SBP annuity was denied.  

10.  The applicant provides a divorce agreement statement signed by her and the FSM, dated 28 August 2000, in which they indicate upon the resolution of their 28-year marriage the FSM verbally agreed, as part of their divorce agreement, to leave the applicant as the designated beneficiary of his military retirement fund, allowing her to be able to draw from this retirement fund upon his 60th birthday.  It further indicates it was his desire to see this agreement remains in place, and that the applicant receive these designated benefits in full.  The SBP annuity is not specifically mentioned.   

11.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  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: (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) 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.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to correct the FSM’s record to show a former spouse SBP election was made within 1 year of their divorce has been carefully considered.  

2.  Although the FSM did not comply with the requirement to submit a former spouse election within 1 year of their divorce and the divorce decree and agreement entered into by the applicant and FSM do not specifically define SBP as a one of the retirement benefits they agreed would go to the applicant, it is reasonable to conclude this was the result of ignorance of the specific requirements for former spouse SBP coverage. 

3.  The divorce decree specifically mentions that equitable distribution had been previously resolved by the parties prior to filing for divorce.  The applicant provides a statement signed by her and the FSM, in which they indicate upon the resolution of their 28-year marriage the FSM verbally agreed, as part of their divorce agreement, to leave the applicant as the designated beneficiary of his military retirement fund which can reasonably be concluded is applicable to the SBP coverage that was in force prior to their divorce.  

4.  Given the length of their marriage, the fact the applicant was designated as the beneficiary of his SBP coverage at the time of his retirement, and given his intent to continue to cover the applicant as a former spouse is, in effect, confirmed in the statement provided by the applicant, it would be appropriate and serve the interest of equity to correct the record to show a former spouse SBP election was processed and accepted within 1 year of their divorce, and to provide the applicant the SBP coverage initially elected by the FSM.  Any premium costs associated with the election change will be borne by the applicant.

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 the FSM made a former spouse election and that it was processed and accepted within 1 year of the divorce;
   
   b.  providing the applicant an SBP annuity based on the election initially made by the FSM from the day after the FSM’s death through the present; and 


   c.  showing all premium costs associated with this election and coverage change will be borne by the applicant.



      ___________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)                                         AR20110016240



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110016240



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1