BOARD DATE:	  24 February 2015

		DOCKET NUMBER:  AR20140009803 


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:

The applicant, the former spouse of a former service member (FSM) (now deceased), defers her request and evidence to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's earlier request to be designated the surviving beneficiary for the FSM's Reserve Component Survivor Benefit Plan (RCSBP).

2.  Counsel states, in effect:

* in the judgment of divorce, as agreed by both parties and effective 17 February 2010, the former spouse would be awarded 50 percent of the marital share of the FSM's military pension
* a private company was hired to prepare the Qualified Domestic Relations Order (QDRO) but they were unable to get the required information to complete the QDRO as related to the FSM's Army benefits
* because of a lack of response, a State court issued a subpoena to the Defense Finance and Accounting Service (DFAS) office for U.S. military retired pay (section); but DFAS never responded to the subpoena
* the FSM died about 2 years after the divorce, on 26 October 2011
* the applicant made a good faith effort to obtain the information needed to request a change of the RCSBP election; she was also never provided proper notice of the requirement to make this request within 1 year of the divorce
* the Board should give credence to the divorce court's judgment and grant the applicant's request

3.  Counsel provides no new documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120022525, on 20 August 2013.

2.  Through counsel, the applicant makes a new argument which warrants consideration by the Board.

3.  The FSM was born in October 1959 and he 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.

4.  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.

5.  On 17 February 2010, the FSM and the applicant were divorced.  The divorce decree provided in effect that the FSM would take the steps necessary to ensure 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.

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

7.  Information received from the DFAS indicates the FSM’s child is the beneficiary of his SBP annuity.

8.  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. 
9.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 (and not participating in SBP), to provide an annuity for their survivors should they die before reaching 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.  Three options are available under the RCSBP:

   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, or
   
   c.  elect that a beneficiary receive an annuity immediately upon their death if before age 60 

10.  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, to include Reservists.

11.  Title 10, U.S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP.  This law:

* permits a person who, incident to a proceeding of divorce, and who 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 request through counsel was carefully considered.  

2.  SBP elections are made by category, not by name.  Once the applicant became the FSM's former spouse, she lost her eligibility.  With that change in status, the law requires specific action to be taken either by the FSM or the former spouse to ensure continued SBP coverage.  Additionally, this action must be taken within the very specific timeframe of 1 year.  Unfortunately, Federal law offers no legal remedy or avenue to overcome the requirement that a deemed election must be made within 1 year from the date of the divorce.  The fact the applicant did not know of the requirement does not affect the outcome.

3.  Counsel offers no new evidence showing the FSM requested 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 deadline.

4.  The language in the divorce decree addresses only the FSM's military pension.  At both the time of the divorce and the FSM's passing, he was not yet receiving his military retired pension.  By contrast, the SBP is an annuity, and to meet the requirement of law, the language of the divorce decree must explicitly identify SBP and/or the Federal law covering it.  No such language was included.

5.  The FSM had SBP coverage by virtue of the fact that he failed to make an election within 90 days of the receipt of his 20-year letter.  Since the FSM was no longer married to the applicant at the time of his death, his SBP reverted to his eligible children.  

6.  If any of those children have received an annuity or portion thereof, any correction in the applicant's favor would divest them of their interest without due process.  Additionally, it would cause a debt to be created for the children as all annuities distributed would have to be recouped.  

7.  The children are no longer minors, but three appear to be eligible beneficiaries if attending school full-time.  If the children who received annuity benefits voluntarily relinquish their interest, and reimburse the government of any monies received, the Board could reconsider this case.

8.  Given the foregoing, however, there are insufficient grounds upon which to grant 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 to amend the decision of the ABCMR set forth in
Docket Number AR20120022525, on 20 August 2013.



      _______ _ 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)                                         AR20140009803



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ABCMR Record of Proceedings (cont)                                         AR20140009803



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