IN THE CASE OF:	

		BOARD DATE:	  9 October 2014

		DOCKET NUMBER:  AR20140003194 


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 she was the recipient of the FSM’s SBP since he made the election in 2008.  Upon their divorce in 2010, she initiated action to keep her status as an SBP recipient.  However, correspondence from the Defense Finance and Accounting Service (DFAS) indicates that she did not notify them within 1 year of the divorce despite numerous letters from her attorneys to DFAS during that 1-year period.  She has continued to apply for her SBP annuity as a former spouse and has been denied. 

3.  The applicant provides copies of her divorce decrees, correspondence from her attorneys, the FSM’s Reserve Component SBP (RCSBP) election, death certificate, 20-Year letter, her application for an annuity, children’s birth certificates and Social Security card and correspondence from the U.S. Army Human Resources Command and DFAS.

CONSIDERATION OF EVIDENCE:

1.  The FSM and the applicant married on 26 May 1996,  The FSM was serving in the Oklahoma Army National Guard (OKARNG) in the rank of chief warrant officer three (CW3) when he was issued his 20-Year Letter on 1 October 2008.

2.  On 28 October 2008, he made a spouse and children full coverage election with immediate coverage (option C) under the RCSBP.

3.  On 7 June 2010, the applicant and the FSM were divorced in Benton County, Arkansas.  A review of the divorce decrees provided by the applicant failed to reveal language regarding the SBP or her entitlement to an SBP annuity as a former spouse but she was awarded a portion of his retired pay.  The applicant retained custody of their two minor children.

4.  The FSM passed away on 14 March 2012 at the age of 44.

5.  Information received from officials at DFAS indicates that the FSM’s children are currently receiving his SBP annuity. 

6.  The applicant provides a copy of a DD Form 2293 (Application for Former Spouse Payments from Retired Pay) dated 28 June 2011, 1 year and 21 days after the date of her divorce from the FSM requesting 50% of the FSM’s disposable retired pay per month. 

7.  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. 

8.  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.    

9.  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).

10.  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.

11.   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.  The divorce did not award the applicant RCSBP entitlements although it did award her a portion of his retired pay.  Once they divorced she was no longer a beneficiary unless the FSM made a voluntary change to coverage and made such a change within 1-year of divorce. 

2.  There is no evidence to show the FSM requested that his RCSBP coverage be changed to former spouse coverage within the statutory 1-year time limit.  

3.  The divorce decree and accompanying property settlement between the applicant and the FSM does not contain any language regarding a former spouse election or the RCSBP.  Accordingly, since the FSM elected spouse and child immediate full coverage and since he no longer had a spouse, his children became the beneficiary of his RCSBP annuity.

4.  It is also noted that the applicant attempted to receive 50% of his disposable retired pay based on the decision of the court; however, the applicant had not reached eligibility for retired pay at age 60 when he passed away, thus there was no disposable retired pay to divide.

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)                                         AR20140003194





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ABCMR Record of Proceedings (cont)                                         AR20140003194



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