BOARD DATE:	  5 May 2015

		DOCKET NUMBER:  AR20140014196 


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 deceased former spouse, a former service member (FSM), be corrected to show that he changed his category of participation in the Survivor Benefit Plan (SBP) from children only to former spouse coverage.

2.  The applicant states:

	a.  At the time of the divorce the court ordered that she be assigned 37.5 percent of the FSM's military retired pay.

	b.  The FSM died on 20 February 2011, only months before he would have became eligible for his pension.

	c.  She was with the FSM when he died, providing hospice care for the last 9 months of his life.

	d.  Their three children are all grown and are not eligible to receive survivor benefits, which is an injustice.

	e.  While they were married she traveled around the world with the FSM for 10 years, moving every 2 1/2 years, unable to have a career of her own or to go to college.

	f.  Their oldest son is disabled and she tried to assist him financially; however, she is partially disabled herself.

	g.  She has a bad back, bad knees, and is hard of hearing; therefore, she can only work part time.

	h.  Her right arm and shoulder were injured while she was providing nursing care to her dying former spouse.

	i.  She was a certified nursing assistant prior to getting married.

3.  The applicant provides:

* Attorney letter, dated 23 July 2014
* Certificate of Death, issued on 23 February 2011
* Revised Qualified Domestic Relations Order and Certificate, dated 13 February1997
* Divorce Judgment, dated 6 May 1991

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM was born on 26 April 1951.  He enlisted in the Regular Army on 5 June 1970.  He and the applicant married on or about 12 July 1973.  He remained a member of the armed forces through enlistments, reenlistments, and extensions.

3.  On 6 May 1991, the applicant and the FSM divorced.  There is nothing in the Divorce Judgment or the Revised Qualified Domestic Relations Order provided by the applicant that pertains to the FSM's SBP benefits.

4.  On 18 June 1991, the FSM was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  He was told that having completed the required years of service, he was eligible for retired pay upon application at age 60.

5.  On 20 July 1991, the FSM elected to participate in the SBP for children only coverage, full base amount, option C (immediate coverage).  The DD Form 1883 (SBP Election Certificate) he completed shows that he was not married at the time he made his election for SBP coverage.

6.  The FSM was discharged from the Maine Army National Guard and he was transferred to the U.S. Army Reserve Control Group (Retired Reserve) on 
30 May 1992.

7.  The FSM died on 20 February 2011, prior to reaching age 60.

8.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

9.  Public Law 95-397, the Reserve Component SBP (RCSBP), 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.  At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else have waited until he/she applied for retired pay and elected to participate in the standard SBP.

10.  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.

11.  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 SBP or was still on active duty and had not yet made an SBP election.

12.  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.  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 is received within 1 year of the date of the court order or filing involved.  When SBP is court-ordered, the former spouse may make a deemed election within 1 year of the divorce.  When SBP is not court-ordered, the retiree may make a written request to change spouse coverage to former spouse coverage voluntarily.  Otherwise, participation remains in a suspended status until the retiree gains another spouse who will become the beneficiary after completing 1 year of marriage unless the retiree desires not to resume spouse coverage, which is an option.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and her supporting documents have been considered.

2.  There is nothing in the Divorce Judgment or the Revised Qualified Domestic Relations Order that clearly pertains to the FSM's RCSBP benefits or evidences any understanding of the statutory requirements related to RCSBP or indeed to the nature of the interest.

3.  The DD Form 1883 shows the FSM was not married at the time he made his SBP election on 20 July 1991.  It shows the names of his children that were legally authorized to receive RCSBP benefits.

4.  The FSM and the applicant divorced in May 1991.  He made a deemed SBP election of children only within 1 year of receiving his 20-Year Letter.  The applicant and the FSM were divorced prior to him making his election.  She has not shown error or injustice in actions taken by the Army in this case.  She is not entitled to RCSBP benefits.

5.  In view of the foregoing, her 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)                                         AR20140014196



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ABCMR Record of Proceedings (cont)                                         AR20140014196



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