IN THE CASE OF:	  

		BOARD DATE:	  15 November 2012

		DOCKET NUMBER:  AR20120009743 


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, the former spouse of a deceased former service member (FSM), requests correction of his records to show he timely changed his Reserve Component Survivor Benefit Plan (RCSBP) coverage from "spouse" to "former spouse" coverage at the time of their divorce and payment of the SBP annuity as a result of his death.

2.  The applicant states she was unaware that the FSM's record was supposed to change.

3.  The applicant provides:

* Her divorce decree
* The FSM's Certificate of Death

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 17 December 1941.  He previously served in the U.S. Navy from May 1960 to March 1964.

2.  The FSM and Lorna were married on 22 September 1975.

3.  He enlisted in the Minnesota Army National Guard (MNARNG) on 9 February 1977 and he served in a variety of assignments.  

4.  The FSM and Lorna were divorced on 20 September 1982.  Their divorce decree did not address the SBP.

5.  The FSM and Bonnie, the applicant, were married on 24 October 1986.

6.  The FSM was honorably discharged from the MNARNG on 6 September 1989.

7.  The FSM enlisted in the U.S. Army Reserve (USAR) on 7 September 1989.  He served in various positions and he attained the rank/grade of sergeant first class (SFC)/E-7.

8.  Orders 95A-354-042, issued by Headquarters, 88th Regional Support Command, Fort Snelling, MN, dated 20 December 1995, released the FSM from his current assignment and assigned him to the Retired Reserve, effective
31 December 1995.  The orders indicate he was involuntarily reassigned from the Selected Reserve by reason of unit inactivation.

9.  On 17 May 1996, the U.S. Army Reserve Personnel Center, St. Louis, MO, issued the FSM a memorandum, subject:  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 he would be eligible for retired pay upon application at age 60.

10.  On 24 December 1996, the FSM completed a DD Form 1883 (SBP Election Certificate).  He indicated he was married to the applicant and they had no dependent children.  He further elected "spouse" coverage, full amount, option C (immediate coverage), under the RCSBP.  His spouse, the applicant, concurred.

11.  Records show the FSM completed a DD Form 2656 (Data for Payment of Retired Personnel), dated 23 December 1999, wherein he indicated he was married to Bonnie, the applicant.  He elected "spouse" coverage based on the full gross amount.   

12.  Orders P-08-305069, issued by the U.S. Army Reserve Personnel Command, St. Louis, dated 27 December 2001, placed the FSM on the Retired List in his retired grade of SFC effective 17 December 2001, his 60th birthday.

13.  On 22 February 2005, the FSM and applicant were divorced.  Their divorce decree stipulated that the FSM was ordered to continue to allow the withholding from his monthly military retiree benefits of the required amount to provide the applicant with SBP coverage against the event of his own death.  

14.  There is no indication the FSM requested a change to his SBP coverage to "former spouse" coverage within 1 year of his divorce and there is no indication his now former spouse, the applicant, submitted a request for deemed election within 1 year of their divorce.

15.  On 4 January 2012, the FSM died.  The Certificate of Death shows he was divorced (and not remarried) at the time of his death.

16.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty 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.  Since its creation, it has been subjected to a number of substantial legislative changes.

17.  Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60.  Three options were 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; or (c) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  Once a member elects either option B or option C in any category of coverage, that election is irrevocable.  

18.  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 (including Reservists).

19.  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.

20.  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.
21.  Title 10, U. S. Code, section 1450(f)(3)(A) permits a former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a proceeding of divorce.  Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within one year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the records of her deceased former spouse should be corrected to show he timely changed his SBP coverage from "spouse" to "former spouse" coverage pursuant to their divorce decree and she should be paid the SBP annuity based on his death.

2.  The evidence of record shows the FSM executed a DD Form 1883 on
24 December 1996, electing "spouse" RCSBP coverage under option C, immediate coverage.  Additionally, although he was not required to do so, upon applying for retired pay at age 60, he submitted a DD Form 2656 wherein he again elected "spouse" SBP coverage.

3.  The FSM and applicant were divorced on 22 February 2005.  Their divorce decree stipulated he would continue to allow the withholding from his monthly military retiree benefits of the required amount to provide the applicant with SBP coverage against the event of his own death.

4.  SBP and/or RCSBP elections are made by category, not by name.  Once the FSM and the applicant were divorced, she was no longer his spouse.  Nevertheless, 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, the applicant appears not to have been aware of the requirement to deem the election.

5.  The FSM twice elected "spouse" coverage while married to the applicant and he was required to make a former spouse election as per their divorce decree.  Since he was not remarried, it appears his intent was to make the SBP coverage change from "spouse" to "former spouse" coverage but neither he nor the applicant were aware of the 1-year rule.  Therefore, the FSM's record should be corrected to show he did so in a timely manner and his request was timely received and processed by the Defense Finance and Accounting Service (DFAS).

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 the FSM changed his SBP coverage from "spouse" to "former spouse" coverage within 1 year of their divorce on 22 February 2005
* showing his request was timely received and processed by the appropriate DFAS office
* paying the applicant the SBP annuity retroactive to the day after the FSM's death



      ____________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)                                         AR20120009743



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ABCMR Record of Proceedings (cont)                                         AR20120009743



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