IN THE CASE OF:	  

		BOARD DATE:	  31 July 2012

		DOCKET NUMBER:  AR20110024737 


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, P_______, the former spouse of a former service member (FSM), requests, in effect, correction of the FSM's records to show she is entitled to Survivor Benefit Plan (SBP) benefits. 

2.  The applicant states the FSM was a highly responsible husband, father, citizen, and Soldier, and he would not have overlooked completing his SBP election.  She believes she is entitled to and should receive SBP benefits due to her husband's faithful years of dedicated service to his country and his desire for his family to be taken care of in the event of his death.

3.  The applicant provides copies of:

* the FSM's certificate of death
* their marriage license
* their divorce decree
* FSM's Last Will and Testament
* memorandum, dated 1 October 1998, subject; Survivor's Benefit Election

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 entered military service as a Regular Army (RA) enlisted Soldier on 20 July 1970.  The marriage certificate provided by the applicant shows the applicant and the FSM were married on 9 November 1979.

3.  The FSM was appointed as a second lieutenant in the North Carolina Army National Guard (NCARNG), effective 13 March 1990.

4.  Orders Number 161-13, issued by the Office of the Adjutant General, Camp Robinson, North Little Rock, AR, dated 10 June 1998, show he was honorably separated from the ARNG, on 30 June 1998, and transferred to the Retired Reserve. 

5.  His National Guard Bureau (NGB) Form 22 shows he held the rank of captain (CPT)/O-3 and he completed 19 years, 11 months, and 11 days of service for retired pay purposes.

6.  The FSM was issued a "Notification of Eligibility for Retired Pay at Age 60 with 15 years of Service" on 1 October 1998.

7.  The applicant provides a memorandum, dated 1 October 1998, issued by the office of the Adjutant General, ARARNG, notifying the FSM that he had the opportunity to make an election to cover his dependents under the Reserve Component Survivor Benefit Plan (RCSBP).  Further, he had 90 days from the date of his Notification of Eligibility for Retired Pay to make such an election; otherwise he could not do so until he applied for his retired pay at age 60.  This document was among the enclosures to the FSM's 15-year letter.

8.  The FSM’s official military personnel file (OMPF) does not contain an RCSBP/SBP Election Certificate nor do the Defense Finance and Accounting Service (DFAS) records contain evidence of an RCSBP/SBP election.

9.  On 29 January 2007, the applicant and the FSM were divorced.  The divorce decree does not mention the SBP.


10.  On 23 April 2011, at age 51, the FSM died.  His death certificate lists M_______ as his spouse.  Their date of marriage is not available.

11.  The applicant provides the FSM's will, dated 24 July 1990, however; this document does not specifically address his retired pay.  It does direct that all his property, real, personal, and mixed, including any property over which he may have power of appointment to be willed to the applicant.  It is unclear if his will was updated after the divorce.

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.  Elections are made by category, not by name.  An RCSBP election rolls into the standard SBP at age 60.

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; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else have waited until he/she applied for retired pay and elected to participate in the standard SBP.

14.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.

15.  Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the USFSPA relating to the SBP.  It permits a person to elect to provide an annuity to a former spouse.  Any such election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date of the decree of divorce.  The member must disclose whether the election is being made pursuant to the requirements of a court order or pursuant to a written agreement previously entered into voluntarily by the member as part of a proceeding of divorce.





DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for RCSBP benefits was carefully considered; however, there is insufficient evidence to grant relief.

2.  The evidence shows the FSM and the applicant were married on 9 November 1979 and the FSM was transferred to the Retired Reserve List on 1 July 1998. Although it appears the FSM was notified of the requirement to make an RCSBP election there is no evidence that he made such an election.  His notification further informed him that if he failed to make an election within 90 days he would not have the opportunity to make the election until he was eligible to receive retired pay at age 60.  He died on 23 April 2011 at age 51 before becoming eligible to enroll in the program.

3.  Further, and as a point of clarification, the applicant and the FSM were divorced on 29 January 2007.  Title 10, U.S. Code, section 1448(b)(3), permits an election to provide an annuity to a "former spouse"; however, the election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date of the decree of divorce.  There is no available evidence to show the FSM made such a request, nor is there evidence the applicant was awarded former spouse coverage.  Consequently, had the evidence shown that the FSM elected to participate in the RCSBP for "spouse only" coverage prior to his death, his spouse at the time of death, not the applicant, would receive the SBP benefits.

4.  In view of the foregoing, there is no basis upon which to grant the 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)                                         AR20110024737



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ABCMR Record of Proceedings (cont)                                         AR20110024737



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