IN THE CASE OF:	  

		BOARD DATE:	    25 October 2012

		DOCKET NUMBER:  AR20120005404 


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 changed his Survivor Benefit Plan (SBP) coverage from "spouse" to "former spouse" within 1 year of his divorce.

2.  The applicant states he was not aware that he was required to file a change to his SBP election within 1 year of his divorce.

3.  The applicant provides:

* Divorce Decree
* Retirement Orders
* Active Duty orders
* Direct Deposit Sign-Up Form
* Notification of Eligibility for Retired Pay memorandum
* Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points), dated 3 January 2012
* DD Form 108 (Application for Retired Pay Benefits), dated 29 February 2012
* DD Form 2656 (Data for Payment of Retired Personnel), dated 
29 February 2012
* DD Forms 214 (Certificate of Release or Discharge from Active Duty), effective 25 July 2008 and 25 July 2009



CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 21 August 1954.  He married Susan on 14 January 1978.

2.  He was appointed as a second lieutenant in the U.S. Army Reserve (USAR) on 5 January 1992.

3.  On 13 February 2002, the USAR Personnel Center issued him 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 qualifying Reserve service and would be eligible for retired pay upon application at age 60.  It also stated that "by law" upon receipt of this letter, a qualified Reserve Component member, who was married, would automatically be enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) under Option C, Spouse and Child(ren) coverage based on Full Retired Pay, unless spouse concurrence was provided to allow one of the following elections:

   a.  Option A - defer enrollment until age 60 when he applies for retired pay.
   
   b.  Option B - enroll and pay an annuity when he would have been age 60:
   
* Enroll spouse or spouse and child(ren) at LESS THAN the maximum level
* Enroll child(ren) only

c.  Option C - enroll and pay an annuity immediately upon his death but:

* Enroll spouse or spouse and child(ren) at LESS THAN the maximum level
* Enroll children only

4.  There is no indication the applicant made an election; therefore, he would have been automatically enrolled in spouse and child(ren) coverage based on his full retirement pay.

5.  On 13 January and 25 March 2010, he and Susan entered into a property settlement agreement.  Their agreement stipulated that:

* the applicant's wife (Susan) shall be entitled to 50 percent of the net monthly proceeds/benefit/payment from his military pension
* the applicant's wife (Susan) shall be and will remain the recipient of the SBP annuity under the maximum spouse coverage available through said plan to a former spouse
6.  On 27 April 2010, he and Susan were divorced and their property settlement agreement was incorporated into their divorce decree.

7.  On 13 June 2011, he was transferred to the Retired Reserve.

8.  There is no indication he notified the Defense Finance and Accounting Service (DFAS) of his divorce within 1 year or that he submitted a change to his SBP coverage from "spouse" to "former spouse" coverage within 1 year of his divorce.  Additionally, there is no indication his former spouse deemed the SBP election within 1 year of their divorce.

9.  On 29 February 2012, he submitted an application for retired pay at age 
60.  In connection with this application, he also submitted a DD Form 2656 wherein he:

* indicated Susan was his "former spouse" and elected "spouse" SBP coverage based on a full rate
* left arrears of pay to Susan and indicated he had no spouse
* authenticated this form, along with a witness, by placing their signatures in the appropriate blocks

10.  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.

11.  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.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (to include Reserve members).

12.  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.

13.  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.

14.  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 evidence of record shows the applicant married Susan on 14 January 1978.  The record does not show that he made an RCSBP election upon receiving his 20-year letter; therefore, he would have been automatically enrolled in RCSBP coverage for spouse and children at the full rate.

2.  On 27 April 2010, the applicant and Susan were divorced and the applicant has not remarried.  

3.  SBP and/or RCSBP elections are made by category, not by name.  Once the applicant and his spouse were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary.  He was required to make a "former spouse" election as stipulated in their divorce decree.  He did not do so within 1 year of their divorce.  Additionally, his former spouse may not have been aware of the option to deem the election.

4.  However, there is sufficient evidence to show it was the applicant's intent to provide SBP coverage for his former spouse, and as a matter of equity, it would be appropriate to correct his records to show he changed his SBP annuity enrollment election from "spouse" to "former spouse" coverage within 1 year of his divorce.



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 changed his RCSBP coverage to "former spouse" within 1 year of his divorce on 27 April 2010 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)                                         AR20120005404



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ABCMR Record of Proceedings (cont)                                         AR20120005404



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