BOARD DATE:	  11 March 2014

		DOCKET NUMBER:  AR20130011728 


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 participation in the Survivor Benefit Plan (SBP).  In effect, she requests correction of the FSM's records to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for former spouse coverage and payment of the SBP annuity based on the FSM's death.

2.  The applicant states:

	a.  She was married to the FSM from January 1967 to October 1990.  He originally served as a captain in the U.S. Marine Corps but then changed to warrant officer in the North Dakota Army National Guard (NDARNG).  Her 1990 divorce document (which was twice received by the Defense Finance and Accounting Service (DFAS)) specifically states that she would receive 45 percent of all of the FSM's military retirement benefits.  It also states should she survive him, she would receive 45 percent of the annuity.  Both parties agreed to cooperate in any procedure necessary to effectuate the transfer of rights.  

	b.  The FSM could not receive his retired pay until age 60 which was in 2004. She filed her paperwork around the same time (2003 or 2004) and received a monthly 45 percent annuity until his death.  Between the time they were divorced and the time of his death, they never communicated and lived separately in two different states.  At the time of their divorce, neither was informed by the ARNG that anything other than the certified divorce document would be required for future military retirement benefits under the SBP.  

	c.  When she received the termination letter from DFAS, she sent them a copy of his 2003 military retirement application.  She was surprised that he elected not to participate in the SBP.  This is in violation of the court order.  There are similar legal cases where the Office of Personnel Management corrected the injustice of a former spouse.  

3.  The applicant provides:

* Marriage license
* Pages 6 and 7 of her divorce decree
* Retirement orders
* Notification of Eligibility for Retired pay at Age 60
* DD Form 2656 (Data for Payment of Retired Personnel)
* Direct Deposit Authorization
* DD Form 108 (Application for Retired Pay Benefits)
* DD Form 214 (Report of Separation from Active Duty)
* Multiple correspondence from DFAS

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 3 November 1944.  He and Rodine, the applicant, were married on 28 January 1967. 

2.  The FSM previously served in the U.S. Marine Corps.  He was appointed as a Reserve warrant officer of the Army and ARNG on 18 April 1979.  He served in a variety of staff or command assignments and he attained the rank of chief warrant officer three (CW3). 

3.  The applicant provides pages 6 and 7 of her divorce decree.  The exact date of her divorce is unknown.  She states it was in October 1990.  These pages state the applicant would receive 45 percent of the FSM's military retirement benefits.  Further, should the applicant survive the FSM, she would be awarded the 45 percent survivor's annuity, unreduced.  

4.  On 16 November 1992, the National Guard Bureau issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified him that he had completed the required years of service and he would be eligible for retired pay at age 60, upon application.  This letter further informed him of his eligibility for enrollment in the RCSBP and the options available to him.

5.  There is no indication the FSM completed a DD Form 1883 (SBP Certificate) within 90 days of receiving his 20-year letter and/or made an election to participate in the RCSBP. 
6.  On 3 November 2004, the FSM submitted an application for retired pay.  With his application, he completed a DD Form 2656 and indicated he was single.  He elected not to participate in the SBP.  

7.  On 5 August 2004, the U.S. Army Reserve Personnel Command, St. Louis, MO, published Orders P08-486552 placing the FSM on the Retired List in his retired grade of CW3 effective 3 November 2004, his 60th birthday. 

8.  On 8 October 2011, the FSM died.  His death certificate shows he was divorced at the time of death.  

9.  On 1 November 2011, DFAS forwarded the applicant a claim for unpaid compensation for her use in applying for any unpaid retired pay due on the date of his death and that DFAS would be terminating her payments under the Uniformed Services Former Spouse's Protection Act (USFSPA) from the FSM's retired pay. 

10.  On 30 April 2012, she notified DFAS that the court-ordered divorce documents clearly specify in the event of the FSM's death, she would continue to receive the benefit.  

11.  On 1 June 2012, DFAS responded with a negative answer, indicating that payments under the Uniformed Services Former Spouse's Protection terminate upon the member’s or the former spouse’s death, whichever occurs first.  Payments under the USFSPA and the SBP are two separate issues.  

12.  Public Law 95-397, enacted 30 September 1978, provided a way for RC members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60.  The election had to be made within 90 days of receiving one’s 20-year letter.  Three options were available: 

* Option A - elect to decline enrollment and choose at age 60 whether to start SBP participation
* Option 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
* Option C - elect that a beneficiary receive an annuity immediately upon their death if before age 60

13.  Public Law 97-252, the USFSPA, dated 8 September 1982, established SBP coverage for former spouses of retiring members.

14.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members.

15.  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.

16.  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 one 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.

17.  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 one 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.  The FSM and the applicant divorced in 1990.  He was not married when he received his 20-year letter in 1992, and he made no RCSBP election, effectively deferred his SBP election to age 60.  

2.  When he applied for retired pay at age 60, he completed a DD Form 2656 and elected not to participate in the SBP.  

3.  The available evidence does not show the FSM made an RCSBP former spouse election upon receiving his 20-year letter or that the applicant made a request for a deemed election within 1 year of her divorce.  

4.  However, it is clear the applicant was entitled to RCSBP/SBP per the terms of her divorce.  The FSM's repeated failings to comply with the obligation to elect former spouse coverage should not be used as a basis to deny coverage.  Therefore, as a matter of equity, it is appropriate to correct the FSM's records to show the applicant made a timely deemed election for former spouse coverage.

5.  SBP premiums have never been paid, and they must be paid before the annuity can start.

BOARD VOTE:

__x___  ___x_____  ___x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 individual concerned be corrected by showing the applicant made a request for a deemed election within one year of her divorce from the FSM and DFAS timely received and accepted her request for a deemed election and that she be paid the SBP annuity retroactive to the day after his death.

2.  The applicant is advised that DFAS will be instructed to collect any SBP costs due.  



      _______ _ 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)                                         AR20130011728





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ABCMR Record of Proceedings (cont)                                         AR20130011728



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