BOARD DATE:	  20 August 2013

		DOCKET NUMBER:  AR20120022525 


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 that the records of her deceased former spouse, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.

2.  The applicant states, in effect, that the FSM agreed in court to designate her as his SBP beneficiary but passed away before it was accomplished. 

3.  The applicant provides copies of her marriage license, the FSM’s death certificate, her divorce decree, and letters and subpoenas requesting information from the FSM and the Department of the Army.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born in October 1959 and was serving in the U.S. Army Reserve (USAR) in the pay grade of E-7 when he received his 20-Year letter on 14 April 2004 advising him that he was eligible to apply for non-regular retired pay at age 60.  The letter also advised him that he would automatically be enrolled in the SBP with full coverage for spouse and child under option C (immediate coverage) unless his spouse agreed to another option.  There is no evidence that the FSM made any election.

2.  The FSM was promoted to the pay grade of E-8 on 1 June 2006, and on       29 August 2007 he was transferred to the Retired Reserve.

3.  On 17 February 2010 the FSM and the applicant were divorced in Michigan.  The divorce decree provided in effect that the FSM would ensure that steps were taken to ensure that the FSM’s death would not affect the amount of military retirement benefits awarded to the applicant by the court.  It does not address the SBP by name or the statutes that govern the plan.

4.  The FSM passed away on 26 October 2011 at the age of 52 and there is no evidence to show that the applicant or the FSM made a former spouse election under the SBP within 1 year of the divorce.

5.  Information received from the Defense Finance and Accounting Service (DFAS) indicates that the FSM’s child is the beneficiary of his SBP annuity.

6.  Public Law 92-425, the SBP, enacted 21 September 1972, 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.  Elections are made by category, not by name. 

7.  Public Law 95-397, the Reserve Component SBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 (and participate in SBP), 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.  Effective 30 October 2000, written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60 was required.  

8.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted 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 (Reservists, too).

9.  Public Law 99-661, enacted 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the member was participating in the SBP or was still on active duty and had not yet made an SBP election.

10.   Title 10, U.S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election.  Any such election must be written, signed by the person making the election, and received by the Secretary concerned within 
one year after the date of the decree of divorce.  If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made.  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’s contentions have been noted.  However, SBP elections are made by category, not by name.  As long as the applicant was the FSM’s wife she was the SBP beneficiary.  Once they divorced she was no longer a beneficiary unless the FSM or the applicant submitted a former spouse election to DFAS.  

2.  There is no evidence to show the FSM requested that his SBP coverage be changed to former spouse coverage or that the applicant made a request for a deemed election within the statutory 1-year time limit.  

3.  The divorce decree between the applicant and the FSM does not contain any language regarding a former spouse election and it appears that the language used in the divorce decree, although implying the SBP, is not enforceable as it relates to the Federal Statutes governing the SBP.

4.  Accordingly, since the FSM was not married at the time of his death and no former spouse election was made within 1 year, his SBP legally reverted to his eligible children per his automatic enrollment for spouse and child coverage upon receipt of his 20-year letter.  

5.  Regrettably, in view of the foregoing, there is insufficient basis for granting relief to the applicant in this case.

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)                                         AR20120022525





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ABCMR Record of Proceedings (cont)                                         AR20120022525



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