IN THE CASE OF:	  

		BOARD DATE:	  1 August 2013

		DOCKET NUMBER:  AR20120021406 


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 former service member (FSM), requests correction of the FSM's record to change his Reserve Component Survivor Benefit Plan (RCSBP) beneficiary election from spouse to former spouse.

2.  She states she did not realize the FSM had not changed the RCSBP election as required by their divorce decree.  

3.  She provides:

* notarized statement from the FSM
* handwritten note from the FSM
* Divorce Judgment

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM's record shows he served in the Regular Army, Rhode Island Army National Guard (RIARNG), and California Army National Guard.  

3.  On 31 May 1988, he received notification that he had completed the required years of service to be eligible for retired pay upon application at age 60.  

4.  On 5 July 1988, the FSM completed a DD Form 1883 (SBP Election Certificate).  He elected spouse-only RCSBP coverage based on the full amount of his retired pay and option C (immediate coverage).  He listed the applicant as his spouse and their date of marriage as 12 February 1965.

5.  On 12 August 1988, he was honorably discharged from the RIARNG and transferred to the Retired Reserve.

6.  The applicant provides a copy of a Divorce Judgment, dated 16 December 1994, from the District Court, District Five, Division of Waldo, State of Maine.  The judgment granted the applicant a divorce from the FSM.  The court ordered that, within 30 days of the date of the judgment, the FSM would list the applicant as his sole beneficiary under the RCSBP (cited as "S.B.A. Annuity" in the judgment) and provide the applicant copies of paperwork reflecting her beneficiary status.  

7.  The applicant provides a handwritten note from the FSM, dated 3 February 2006, in which he stated, in part, he would "leave the SBP in effect."  He also stated he "missed cut off date."

8.  The applicant provides a notarized statement from the FSM, dated 13 November 2012, in which he certifies:

* he has not remarried since his divorce in 1994
* he always intended the applicant to be his RCSBP beneficiary as stated in their divorce decree
* he would like the RCSBP election changed from spouse to former spouse

9.  The Defense Finance and Accounting Service (DFAS) has confirmed the FSM's account indicates a spouse-only RCSBP election.  DFAS received a divorce decree "some years ago," but it wasn't signed and could not be considered and the original election remained in place.

10.  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 to include persons of insurable interest should the Reservist die before reaching age 60.  

11.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  

12.  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.

13.  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 1 year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record supports the applicant's request for correction of the FSM's record to change his RCSBP beneficiary election from spouse to former spouse.

2.  A court with proper jurisdiction ordered the FSM to provide RCSBP coverage to the applicant and directed him to list her as the RCSBP beneficiary within 30 days of the date of the divorce judgment.  It appears he did not do so in a timely manner, and there is no evidence indicating the applicant submitted a request for a deemed election.  

3.  It is clear that it was the FSM's responsibility to take the necessary steps to change his RCSBP election.  The applicant should not be deprived of RCSBP coverage due to his failure to act in a timely manner.  

4.  In view of the foregoing, it would be appropriate to correct the FSM's record to show he submitted a request to change his RCSBP election to former spouse coverage within 1 year of their 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 FSM be corrected by showing he filed a timely request to change his RCSBP election to former spouse coverage.



      _______ _   __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)                                         AR20120021406





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ABCMR Record of Proceedings (cont)                                         AR20120021406



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