IN THE CASE OF:	  

		BOARD DATE:	  15 October 2013

		DOCKET NUMBER:  AR20130003177 


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 payment of the Survivor Benefit Plan annuity.

2.  The applicant states she and the FSM were married for 20 years.  During the last few years, he had been struggling with pain management, alcoholism, and depression that put a strain on their marriage.  He retired in January 2010 by reason of disability.  At the time of his death in December 2011, the Family Trust was and continues to be recorded with the State of New Hampshire.  She and the FSM are the trustees of the trust.  In December 2010, interrogatories were completed and filed with the state.  The paperwork included the SBP designating her as the beneficiary.  She is listed as the beneficiary on his will, power of attorney, and health advocate.  The annuity was not specifically mentioned in the divorce decree because they were advised by the medical review board personnel that it was not required as long as she was named as his beneficiary on the SBP and in his Family Trust.  Although they were divorced, they kept open communication until his death.

3.  The applicant provides:

* DD Form 2656 (Data for Payment of Retired Personnel)
* Decree of Divorce
* Last Will and Testament
* Family Trust
* Certificate of Death

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 27 August 1962.  He and the FSM were married on 18 August 1990.

2.  Having had prior service, the FSM enlisted in the New Hampshire Army National Guard (NHARNG) on 4 January 1996.  He served through multiple extensions in a variety of assignments and he attained the rank/grade of sergeant first class (SFC)/E-7.

3.  On 29 March 2000, the NHARNG issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified the FSM that he had completed the required years of service and he would be eligible for retired pay upon application at age 60.

4.  On 4 April 2000, the FSM completed a DD Form 1883 (SBP Election Certificate) wherein he indicated he was married to the applicant and they had a dependent child.  The FSM elected "spouse only" coverage, Option C (immediate coverage), based on the full amount, under the Reserve Component SBP (RCSBP).  He and the applicant authenticated this form with their signatures.

5.  The FSM retired on 15 February 2010 and he was placed on the Retired List in his retired rank/grade of SFC/E-7 on the following day.

6.  On 16 February 2010, he completed a DD Form 2656 wherein he indicated he was married to the applicant and they had a dependent child.  He elected "spouse and child(ren)" SBP coverage based on the full amount.  He and an individual of the NHARNG signed this form on 16 February 2010.

7.  On 23 May 2011, the FSM and applicant divorced.  Their divorce decree is silent with respect to the SBP.

8.  On 30 December 2011, the FSM died.  His Certificate of Death shows his domestic status as "divorced."

9.  There is no indication in the FSM's records that he changed his SBP coverage from "spouse" to "former spouse" after his divorce and prior to his death.  

10.  The applicant provides copies of the Family Trust and the FSM's last will.

11.  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.

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.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (including Reservists).

13.  Public Law 106-398, dated 30 October 2000, requires that upon receipt of the 20-year letter, a qualified Reserve Component member who is married will automatically be enrolled in the RCSBP under option C (spouse and child(ren) coverage) based on the full amount unless the spouse's concurrence is provided to allow one of the following elections:

* option A (defer enrollment to age 60)
* option B (enroll and pay annuity when member would have been age 60 for spouse or spouse and child(ren) at less than maximum amount or enroll children only)
* option C (enroll and pay annuity immediately upon death, but enroll spouse or spouse and child(ren) at less than maximum amount or enroll child(ren) only) 

Once a member elects either option B or option C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP - the options automatically roll into SBP coverage.  If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60.

14.  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.

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

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows when the FSM received his 20-year letter, in April 2000, he executed a DD Form 1883 electing spouse RCSBP coverage, under Option C (immediate coverage) based on the full amount.  The February 2010 DD Form 2656 provided by the applicant is invalid because the FSM did not have the option of making another election since he had already made an irrevocable election for spouse coverage in April 2000.

2.  The FSM and applicant were divorced in May 2011.  Their divorce decree did not address the SBP.  The FSM did not make a former spouse election within 1 year of their divorce.  A change in SBP beneficiary would have had to have been a strictly voluntary action on the part of the FSM (absent a provision in the divorce decree), which the evidence of record shows he did not make.

3.  SBP and/or RCSBP elections are made by category, not by name.  A spouse loses eligibility as an SBP beneficiary upon divorce.  There is no provision in the SBP which makes former spouse coverage an automatic benefit.  The only means by which the divorced spouse may receive a survivorship annuity is if former spouse coverage is elected.  A will, Family Trust, or a court order by itself cannot be used to institute coverage.  By law, a signed election request must be received before action can be taken to establish former spouse election.

4.  Although the applicant states she was advised by medical review board personnel that no action or change to the RCSBP/SBP was needed to maintain her interest after the divorce, she provides no independent corroborating evidence to that effect.  The applicant does not meet the statutory requirements to receive the FSM's SBP annuity and she has not provided sufficient evidence of error on the part of the Army.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20130003177



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ABCMR Record of Proceedings (cont)                                         AR20130003177



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