BOARD DATE:	  19 September 2013

		DOCKET NUMBER:  AR20130001743 


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, in effect, that the records of her former spouse, a retired member of the U.S. Army Reserve (USAR), be corrected to show he changed his Reserve Component Survivor Benefit Plan (RCSBP) from spouse coverage to former spouse coverage.

2.  The applicant states a computer error was made by military personnel concerning survival benefits from the retired Solder's military retired pay.  When the member retired he provided a copy of their divorce decree to the Defense Finance and Accounting Service (DFAS) which provided for her to receive this benefit.  DFAS omitted the information from the data base.

3.  The applicant provides copies of:

* Marriage Certificate
* Separation and Property Settlement Agreement, dated 7 October 2010
* Divorce Decree, dated 21 October 2010
* Letter from applicant to her Congressman, dated 22 May 2012
* Privacy Act Release, dated 22 May 2012
* Email communication between applicant and DFAS, dated 8 November 2012
* Time-Line




CONSIDERATION OF EVIDENCE:

1.  On 16 August 1966, the applicant's former spouse enlisted in the United States Air Force, where he served until 14 August 1970.  He subsequently enlisted in the North Carolina Army National Guard and as a member of the USAR on 4 October 1975.

2.  The applicant's marriage certificate shows that she married her former spouse on 12 July 1986.

3.  On 5 August 1986, the applicant's former spouse was notified by the USAR Personnel Command that he had completed the required number of years of qualifying Reserve service and was eligible for retired pay at age 60.

4.  A DD Form 2656 (Data for Payment of Retired Personnel) dated 20 August 2004 indicates that the applicant's spouse at the time requested retired pay effective in October 2005 in conjunction with his attaining 60 years of age.  On this same form, he elected coverage for his spouse, the applicant, based on his full retired pay.  The form was signed and witnessed.

5.  A DD Form 2656-2 (Survivor Benefit Plan (SBP) Termination Request, as contained in DFAS records, indicates that on 10 May 2006 the retired Soldier requested to terminate participation in the SBP.  On 15 May 2006, the applicant signed this form indicating that she knew by doing so she would not receive SBP benefits upon the death of her spouse.  She concurred with the decision to terminate participation in the SBP.

6.  The applicant's divorce decree shows that she was divorced from the retired Soldier on 21 October 2010.  This document states that both parties to the divorce agreed to all property and debt issues in the Separation and Property Settlement Agreement attached as Exhibit A.  Page 5 of this agreement states that both parties agree that plaintiff (the retired Soldier) will continue to designate defendant (the applicant) as recipient of survival benefits from the plaintiff's military pension.

7.  DFAS has no documentation on file showing that the applicant had requested a deemed election for SBP benefits based on her divorce decree.

8.  DFAS records contain a copy of the subject divorce decree, but not a copy of the attached property settlement agreement.

9.  DFAS records contain a copy of the retired Soldier's certificate of marriage indicating he was remarried on 9 April 2011.
10.  DFAS records contain a DD Form 2656-6 (Survivor Benefit Plan Election Change Certificate) dated 21 March 2012 wherein the retired Soldier requested spouse coverage for his current spouse based on his full retired pay.

11.  Public Law 95-397, 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.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.

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 former spouse coverage for retired members, including Reservists.

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 member was participating in the SBP or was still on active duty and had not yet made an SBP election.

15.  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.

16.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from SBP.  The spouse’s concurrence is required.  No premiums will be refunded to those who opt to disenroll.  Reservists who elected an option under the RCSBP will continue to have the Reservist Portion cost deducted from their retired pay.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the records of her former spouse, a retired member of the USAR, should be corrected to show he changed his RCSBP election from spouse coverage to former spouse coverage.

2.  The available evidence shows that when the applicant's spouse requested retired pay in 2005, he had also requested SBP coverage for the applicant who was his spouse at the time.  However, in 2006, the applicant apparently concurred with the decision to terminate her spousal SBP coverage.  This attempt to terminate was not valid, as the retired Soldier's window of eligibility for requesting such a change was not available until after his second anniversary of his receipt of retired pay.

3.  The applicant and the retired Soldier were divorced in October 2010.  The applicant did not request an SBP election of former spouse coverage be deemed to have been made within one year of the divorce.  The retired Soldier never made a former spouse election.

4.  In 2011, the applicant's former spouse remarried.  His new spouse now has a vested interest as a designated beneficiary.  Therefore, unless the current spouse offers to forfeit her interest in the SBP, or if a court of competent jurisdiction to which the spouse is a party decrees the applicant has a greater interest as an SBP beneficiary based upon the settlement agreement and the divorce decree, this Board should not provide the applicant's requested relief.

5.  In view of the above, the applicant's request should be denied.

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)                                         AR20130001743





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