IN THE CASE OF:	  

		BOARD DATE:  21 August 2012

		DOCKET NUMBER:  AR20120002894 


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 correction of his records to show he elected "former spouse" coverage for the Reserve Component Survivor Benefit Plan (RCSBP).

2.  The applicant states upon retirement at age 60, he elected to have his former spouse receive SBP coverage.  The notification letter of eligibility for retired pay at age 60 cites eligibility for coverage when applying for retired pay.

3.  The applicant provides:

* a letter to him from the Defense Finance and Accounting Service (DFAS), dated 24 October 2011
* a self-authored letter to Army Retirement Services, dated 25 January 2012
* a letter to him from the Chief, Army Retirement Service, Office of the Deputy Chief of Staff G-1, Washington, DC, dated 27 January 2012
* the reverse side of a DD Form 2656 (Data for Payment of Retired Personnel)
* a memorandum from the U.S. Army Reserve Personnel Command, St. Louis, MO, subject:  Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), dated 23 January 1995

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 19 April 1951.  He was appointed as a Reserve commissioned officer in the U.S. Army Reserve (USAR) and he executed an Oath of Office on 1 June 1974.  He married his spouse on 26 July 1975.
2.  He served in staff and leadership positions and attained the rank of major on 14 April 1987.

3.  On 23 January 1995, by memorandum, the USAR issued the applicant a Twenty Year Letter.  This memorandum notified him that he had completed at least 20 years of qualifying service and he would be eligible for retired pay upon application at age 60.  It also stated that "by law" he had only 90 calendar days from the date he received the letter to submit his DD Form 1883 (SBP Election Certificate).  If he did not elect coverage, he would not be entitled to survivor benefit coverage until he applied for retired pay at age 60, and should he die before age 60, his survivor would not be entitled to benefits.  

4.  On 20 April 1995, the applicant completed the DD Form 1883 wherein he indicated he was married at the time and he had no dependent children.  He elected SBP coverage under Option C (Immediate Coverage) for "spouse only."

5.  On 15 January 1995, he was transferred to the Retired Reserve.

6.  On 19 April 2011, he was retired and placed on the Retired List.

7.  The applicant provides:

	a.  A letter from DFAS, dated 24 October 2011, wherein an official stated his records indicated he elected spouse coverage during his Reserve period.  He divorced during his Reserve service, prior to his retirement date of 19 April 2011, and he did not elect former spouse coverage within 1 year of the final divorce decree date.  Therefore, he could not change his election to former spouse.

	b.  A self-authored letter to the Chief, Army Retirement Services, Office of the Deputy Chief of Staff G-1, dated 25 January 2012, wherein he stated he had been trying to get DFAS to correct his SBP election.  He submitted a DD Form 2656, dated 1 May 2011, with his application for retired pay.  On this form, he elected SBP coverage for his former spouse.  He further stated he and his former spouse had been divorced on 13 October 2003 and he was not under any divorce settlement requirement to designate her for SBP coverage; however, he did so voluntarily to acknowledge her contributions raising their two children.

	c.  A response letter from the Chief, Army Retirement Services, dated 27 January 2012, wherein he was informed his request to voluntarily change his SBP election could not be approved.  By law, he had 1 year from his 2003 divorce to change his RCSBP election to former spouse.  When he did not take this action, his RCSBP election became suspended spouse coverage and when he retired on 19 April 2011, his RCSBP of suspended spouse coverage became his SBP election.

8.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement to provide an annuity for their survivors.  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 wait until he/she applied for retired pay and elected to participate in the standard SBP and reaches 60 years of age.  Once a member elects either Options B or C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.

9.  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.

10.  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.  In connection with the receipt of his Twenty Year Letter, the applicant submitted an RCSBP election on 20 April 1995, wherein he elected "spouse only" coverage under Option C (Immediate Coverage).  At the time, he was married and he had no dependent children.

2.  On 13 October 2003, he and his spouse were divorced.  The law allowed him to voluntarily change his SBP election to "former spouse" provided he submitted a former spouse SBP election within 1 year of his divorce; however, he failed to do so.


3.  As he elected Option C coverage at the time he received his Twenty Year Letter, he was not entitled to make a new SBP election when he applied for retired pay at age 60.  The option to change his SBP election to former spouse can now only be accomplished during an Open Season.

4.  An Open Season is a time frame set by Congress to allow retirees to enroll in the SBP or increase their participation.  Generally, a member can elect to enroll in any category (spouse, former spouse, spouse and child, former spouse and child, child only, or natural person with insurable interest) for the first time.  The last Open Season was a 1-year open enrollment period (October 2005 to September 2006).  There is no indication if or when the next Open Season will occur.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20120002894



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ABCMR Record of Proceedings (cont)                                         AR20120002894



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