IN THE CASE OF:	  

		BOARD DATE:	  17 July 2012

		DOCKET NUMBER:  AR20120001121 


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 reinstatement of his enrollment in the Survivor Benefit Plan (SBP).

2.  The applicant states that he and his former spouse were divorced and he was required to make a former spouse election.  However, a Reserve Soldier does not get organized retirement.  He was deployed to Afghanistan, Kuwait, and Qatar, during which he received several copies of his divorce decree.  The final divorce decree included all financial distributions of assets but it was not finished and signed by the judge until sometime during his mobilization, April 2009 through April 2010.  When he started his retirement, he tried many times to reinstate his SBP but months went by and no one would answer his request. 

3.  The applicant provides:

* DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage)
* Applicant's original answer to former spouse's petition to enter amended domestic relations order and original counter-petition to enter amended domestics relation order
* Amended order for the division of uniformed services retirement system benefits
* Army Reserve Personnel Command Form 249-E (Chronological Statement of Retirement Points)
* Mobilization and retirement orders
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Letter from the Defense Finance and Accounting Service (DFAS)
CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 7 October 1948.  He and his former spouse, Dxxxa, were married on 15 May 1971.  

2.  Having had prior enlisted service, he was appointed as a Reserve warrant officer of the Army and executed an oath of office on 9 October 1992.  He served in a variety of assignment and he was ultimately promoted to chief warrant officer four (CW4).

3.  On 28 November 1992, the U.S. Army Reserve Personnel Center issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified him that he had completed the required years of service and will be eligible for retired pay on application at age 60.

4.  On 3 May 1993, he completed a DD Form 1883 (Survivor Benefit Plan) wherein he indicated he was married to Dxxxa and they had a dependent child.  He elected "spouse" Reserve Component SBP (RCSBP) coverage, based on the full amount, Option B (elect 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).  His spouse at the time concurred with his election.

5.  On 25 July 2007, the applicant and his former spouse, Dxxxa, were divorced. Their Final Decree of Divorce stated that the Court (District Court, Tarrant County, TX), heard their case and decided that:

	a.  A Domestic Relations Order was signed in conjunction with this Final Decree of Divorce and incorporated verbatim in it by reference, awarding fifty percent (50%) of the disposable retired pay, as defined in the Uniformed Services Former Spouses' Protection Act.

	b.  Wife is entitled to and is hereby awarded rights under the RCSBP, at the sole cost and expense of the Wife and "Within 5 days of receipt of retirement benefits from DFAS, [Former Spouse] shall pay to [Applicant] at his last known address fifty percent (50%) of the amount withheld by DFAS for the cost of the RCSBP premium.

6.  There is no indication the applicant notified DFAS of his divorce or submitted a change to his RCSBP election from "spouse" to "former spouse" within one year of his divorce from Dxxxa.  Furthermore, there is no indication the former spouse deemed the election within 1 year of their divorce.

7.  He was ordered to active duty on 1 April 2009 and subsequently served in Afghanistan from 18 April 2009 to 24 January 2010.

8.  On 15 March 2010, he applied for retired pay at age 60.  In connection with his application, he submitted a DD Form 2656 (Data for Payment of Retired Personnel) wherein he indicated that he was single and had no dependent children.  He elected not to participate in the SBP. 

9.  On 6 April 2010, the U.S. Army Human Resources Command, St. Louis, MO, published Orders P04-922317 placing him on the retired list in his retired grade of CW4 effective 30 April 2010. 

10.  It appears that shortly after the applicant's retirement, the applicant's former spouse, Dxxxa, communicated with DFAS and may have submitted what appears to be a court document claiming a portion of the applicant's retired pay.

11.  On 23 April 2010, by letter, DFAS officials notified the applicant's former spouse that her application for payment of a portion of the applicant's retired pay under the Uniformed Services Former Spouse's Protection Act was received but could not be approved because the court order she provided did not provide sufficient information to calculate the amount of retired pay.  The DFAS official notified her that her application would be placed on hold for 90 days and reminded her that if her divorce decree specified that she were to be designated as a former spouse beneficiary for the SBP, she must make a deemed election for SBP coverage within one year of the date of her divorce. 

12.  On 23 August 2010, the District Court of Tarrant County, TX, issued an Amended Order for the Division of Uniformed Services Retirement System Benefits.  This document shows:

* The former spouse, Dxxxa, was awarded a percentage of the applicant's disposable military retired pay
* The former spouse should be named beneficiary under the Armed Forces SBP benefits and the applicant's election to provide SBP benefits to Dxxxa should be continued and maintained in full force
* The Court ordered the applicant to immediately obtain, fully complete, sign, and return to DFAS or other entity required to affect the Armed Forces SBP all documents, papers, and forms necessary to provide SBP benefits to Dxxxa, former spouse

13.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  An election, once made, was irrevocable except in certain circumstances.  

14.  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 (and eligible to participate in SBP), to provide an annuity for their survivors should they die before reaching age 60.  The election had to be made within 90 days of receipt of the 20-year letter.  Three options are available.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.

* Option (A) - elect to decline enrollment and choose at age 60 whether to start SBP participation
* Option (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
* Option (C) - elect that a beneficiary receive an annuity immediately upon their death if before age 60

15.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

16.  On 10 July 2012, DFAS confirmed the applicant has no eligible SBP beneficiaries.

DISCUSSION AND CONCLUSIONS:

1.  Subsequent to receiving his 20-year letter, the applicant submitted a DD Form 1883 wherein he elected enrollment in the RSCBP, spouse coverage, under Option B.  However, it was completed more than 90 days after the date of his  20-year letter, and it appears DFAS did not accept it as a valid election.

2.  He and his former spouse, Dxxxa, were divorced on 25 July 2007.

3.  When he applied for retired pay in March 2010, he indicated that he was single and elected not to participate in the SBP.  This would have been a perfect opportunity for him to comply with the divorce decree and elect "former spouse" SBP coverage, but he chose not to do so.

4.  There is no evidence the applicant remarried and he clearly desires to comply with the stipulation in his divorce decree with regard to the SBP.   Therefore, and only as a matter of equity, sufficient evidence exists to change his SBP coverage from "spouse" to "former spouse."  

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 showing he elected SBP coverage for "former spouse" at the time he applied for retired pay and that his request was received by DFAS and processed by the appropriate office in a timely manner.



      _______ _   __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)                                         AR20120001121



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ABCMR Record of Proceedings (cont)                                         AR20120001121



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