IN THE CASE OF:

		BOARD DATE:  25 June 2013

		DOCKET NUMBER:  AR20120020842


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 reconsideration of his earlier request for correction of his records to show he changed his Reserve Component Survivor Benefit Plan (RCSBP) coverage from spouse to former spouse coverage within 1 year of their divorce.

2.  The applicant states it has come to his attention that his former spouse (Frances E. M____) is not the beneficiary of his RCSBP.  Their divorce lawyer, who was evidently not well versed in military affairs, assured both of them that all was in order.  In 1993, he completed forms so his then wife (Frances) would receive the RCSBP after his passing.  They were told at that time that only he could change this, but the law has changed, and neither he nor his former spouse were aware of the change.

3.  The applicant provides a:

	a.  Notarized letter, signed by the applicant and his current spouse (Rosmarie M____) in which she relinquishes her interest in his RCSBP to his former spouse (Frances).

	b.  5 September 2012 Military Pension Division Order, which states, in item 19:  "The Respondent shall elect to participate in the Survivor Benefit Plan (SBP), and he shall designate the Petitioner as a "Former Spouse" beneficiary in and under this plan pursuant to the provisions of 10 U.S.C. 1447 et. seq.  The right of the former spouse, Frances M____, to the SBP annuity is superior to that of the Respondent's current spouse."  
	c.  9 October 2009 Final Decree and 30 September 2009 Marital Dissolution Agreement. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110025059, on 31 July 2012.

2.  The applicant provides new evidence that will be considered by the Board.

3.  The applicant married Frances on 20 November 1970.

4.  On 19 October 1991, upon receipt of his 20-Year Letter and in anticipation of his upcoming retirement, he completed a DD Form 1883 (SBP Election Certificate).  He indicated he was married to Frances and had a dependent child.
He elected spouse-only RCSBP coverage based on the full amount with immediate coverage.  Both the applicant and his wife authenticated this document with their signatures.

5.  On 12 January 2000, he was honorably discharged from the Army National Guard and transferred to the Retired Reserve on the following day.  

6.  On 9 October 2009, he and Frances divorced.  The divorce decree he submits with his application stipulates the wife would be designated an SBP beneficiary of his retirement pension and the husband waived any right to privacy to the wife in order for her to obtain information pertaining to his retirement account or accounts.

7.  There is no indication the applicant notified the Defense Finance and Accounting Service (DFAS) to change his SBP election to former spouse coverage or that the former spouse made a deemed election within 1 year of their divorce.

8.  The applicant married Rosmarie at a later date.  A review of his Military Master Pay File revealed he is enrolled in the SBP and the current beneficiary is Rosmarie.

9.  He was placed on the Retired List in the rank/grade of MSG/E-8 on 4 June 2011.

10.  The applicant provides a signed, notarized statement from his current spouse in which she relinquishes her interest in his RCSBP to his former spouse (Frances) and a Military Pension Division Order which states that the right of the former spouse to the SBP annuity is superior to that of the applicant's current spouse.

11.  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.  

12.  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.

13.  Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members.

14.  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.

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.  On 19 October 1991, he completed a DD Form 1883 and elected spouse-only RCSBP coverage.  Years later, he and the former spouse divorced.

2.  The applicant did not make a former spouse election and the former spouse did not make a deemed election within 1 year of their divorce.
3.  The applicant has remarried.  Since SBP elections are made by category, not by name, once the applicant and the former spouse were divorced, she was no longer his spouse and no longer the eligible SBP beneficiary.  

4.  However, the applicant has now provided a signed, notarized declaration from his current wife relinquishing any interest in the SBP annuity and a judgment from a court of competent jurisdiction, decreeing the former spouse has a superior right to the SBP annuity.

5.  In view of the above, his request should be granted.

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 amendment of the ABCMR's decision in Docket Number AR20110025059, dated 31 July 2012.  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" within 1 year of his divorce on 9 October 2009 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)                                         AR20110025059



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ABCMR Record of Proceedings (cont)                                         AR20120020842



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